As AI becomes more embedded in day-to-day legal workflows, in-house counsel are facing a growing challenge: protecting sensitive legal strategy. The attorney work product doctrine—long relied upon as a safeguard—is not one-size-fits-all, and its application can shift depending on context. In today’s environment, where internal investigations and digital collaboration tools are increasingly common, the risk of unintentionally waiving privilege is higher than ever.
That’s why a proactive approach matters. Identifying potential privilege risks early and being intentional about how legal work is handled can make all the difference in preserving critical protections.
Are you confident your legal strategy is fully protected? In this short video, TC partner Jeff Brown shares key insights on what every in-house team should be considering.
Video Transcript
Hello, I’m Jeff Brown, a litigation partner at Thompson Covert in Los Angeles.
For in-house counsel, one of the most overlooked risks today is unintentionally exposing your company’s legal strategy. Especially in an era of AI-assisted workflows, internal investigations, and increasing regulatory pressure, understanding the attorney work product doctrine is more critical than ever.
At a high level, work product falls into two categories. If it reflects an attorney’s thoughts such as mental impressions, legal theories, or strategy. It is considered absolute work product and is strongly protected. Other materials, like interview summaries or supporting analyses, are classified as qualified work product, and those can sometimes be discovered depending on considerations of fairness and necessity.
The purpose of the doctrine is straightforward: it allows attorneys to prepare candidly and thoroughly while preventing opposing counsel from taking advantage of that work. However, context matters. In California, work product protections apply broadly, even outside anticipated litigation. At the federal level and in many jurisdictions, protection typically applies only when materials are created in anticipation of litigation. This distinction becomes especially important in cross-border matters and multi-jurisdictional disputes.
It’s also important to remember that protection belongs to the attorney, not the client, and counsel must establish and defend it. That protection can extend to the attorney’s consultants as well. Investigators, forensic experts, accountants, and data analysts may all fall within the doctrine when working under attorney direction to support legal strategy. However, once those experts are expected to testify, that protection can narrow significantly.
Where I see the most risk today is waiver. Organizations and their legal counsel can unintentionally waive work product protection through their own words or conduct, particularly when they rely on internal investigations as part of their defense or emphasize their independence. Doing so can open the door to disclosure of underlying findings.
So what are the key takeaways? Be deliberate about when legal is directing an investigation. Maintain a clear separation between legal strategy and business communications. And pressure test privilege risk early, especially when using AI tools, managing data, or operating across jurisdictions.
In today’s environment, protecting work product isn’t just a legal issue, it’s a strategic one. Thank you.