July 29, 2015 (PRIVILEGE POINT)
"Does Sharing Work Product with the Government Always Waive that Protection?"
For decades, companies trying to cooperate with the government have hoped for a change in the general rule that disclosing privileged communications and/or work product to the government waives those protections. In nearly every case, disclosing attorney-client privileged communications to the government waives that fragile protection. But in the work product context, courts sometimes take a more forgiving view.
In RMS of Wisconsin, Inc. v. Shea-Kiewit Joint Venture, Case No. 13-CV-1071, 2015 U.S. Dist. LEXIS 74425, at *3 (E.D. Wis. June 9, 2015), plaintiff RMS disclosed work product to the FBI, "in cooperation with the FBI's investigation of the defendants." The court contrasted this situation with settings where such a disclosure generally waives work product protection: when the disclosing company and the government "are adversaries," and when the company "voluntarily submitted the information to a government agency to incite it to attack the [company's] adversary." Id. The court found that RMS did not waive its work product protection — because the company's "interests were aligned" with the FBI, which was "pursuing an investigation of the defendants on the same issue that RMS is now litigating in this suit." Id. At *4.
In most situations, corporations dealing with the government must treat it as an adversary. But in certain very limited circumstances, corporations and the government share a sufficiently common interest that the former can disclose work product to the latter without waiving that robust protection.