Last week’s Privilege Point described two cases finding that successful plaintiffs had waived work product protection covering their invoices and other attorney’s fees billing documents because they sought attorney’s fees as an element of damages. Gilead Scis., Inc. v. United States, 171 Fed. Cl. 202 (Fed Cl. 2024); Byers v. Superior Court, 320 Cal. Rptr. 3d 748 (Cal. Ct. App. 2024).

Neither court explained why the dispute was limited to invoices and billing records. If a litigant seeking attorney’s fees must satisfy a “reasonableness” standard for its lawyers’ bills, one might understandably think that waiver would extend to the lawyers’ underlying work product — not just their bills for creating the work product. No court seems to carry the waiver concept that far. The Gilead case acknowledged but did not apply what some other courts have recognized as a common-sense approach to a successful plaintiff’s worry that disclosing billing records might reveal some protected information — “‘strik[ing] any portion of Gilead’s damages contentions that rely, in whole [or in] part’ on the redacted documents at issue.” Gilead, 171 Fed. Cl. at 208 n.8 (alterations in original) (internal citation omitted). That approach seems logical — allowing the litigants seeking attorney’s fees to protect from disclosure information about their lawyer’s work by refraining from asking the adversary to pay for it.

These two cases dealt with attorney’s fees claims as an element of damages, which involve different issues from fee-shifting statutes or contracts. Some of the same considerations would apply in those settings.