In the May 2006 issue of the IADC Newsletter, Baker Botts lawyers Stephen Scheve and Colin Marks talk about the double-edged nature of the work product doctrine in product liability cases.
“Imagine,” the lawyers write, “that your client calls to obtain pre-launch advice regarding the adequacy of the warnings and instructions on a new product. After reviewing the product, its warnings and background information, you send the client a memorandum outlining your thoughts and advice for reducing litigation risks.
“Some years later, litigation arises surrounding the product, and the plaintiffs request to see the memorandum you prepared regarding potential liability. You refuse to produce the memorandum on the grounds that it is protected by both the attorney client and work product privileges.
“Though it may not seem an extraordinary step, by claiming the work product privilege you may have inadvertently triggered an obligation on the part of your client to retain all documents surrounding the product from the time your client asked you to perform the pre-launch litigation audit.”
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