Showing 106 of 106 results

Chapter: 47.1

Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *14 (E.D. Va. July 18, 2011)
("The work product privilege is not absolute and may be waived. United States v. Nobles, 422 U.S. 225, 239, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975).")

Case Date Jurisidction State Cite Checked
2011-07-18 Federal VA

Chapter: 47.1

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)
("Like the attorney-client privilege, privilege claimed under the work-product doctrine may be waived. See W. Hamilton Bryson, Bryson on Virginia Civil Procedure 348 (3d ed. 1997).")

Case Date Jurisidction State Cite Checked
2002-01-01 State VA

Chapter: 47.5

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *14-15 (E.D. Va. April 13, 2010)
("The central concern in determining whether disclosure to a nonparty (governmental or otherwise) waives work product protection was summed up concisely by In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981): 'to effect a forfeiture of work product protection by waiver, disclosure must occur in circumstances in which the attorney cannot reasonably expect to limit the future use of the otherwise protected material.' Doe thus established reasonableness of the disclosing party's expectation of confidentiality as the touchstone for determining whether work product privilege was waived.")

Case Date Jurisidction State Cite Checked
2010-04-13 Federal VA

Chapter: 47.5

Case Name: Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *4 (W.D. Va. Nov. 8, 2005)
("The privilege may be deemed to have been waived when an attorney freely and voluntarily discloses the contents of otherwise protected work-product to someone with interests adverse to his or those of the client, knowingly increasing the possibility that an opponent will obtain and use the material.")

Case Date Jurisidction State Cite Checked
2005-11-08 Federal VA

Chapter: 47.5

Case Name: Wells v. Liddy, 37 F. App'x 53, 65 (4th Cir. 2002)
("Unlike the attorney-client privilege, however, the work-product privilege is not waived by mere disclosure but instead by making 'testimonial use' of the protected material.")

Case Date Jurisidction State Cite Checked
2002-01-01 Federal

Chapter: 47.5

Case Name: Cluverius v. McGraw, 44 Va. Cir. 426, 430, 431 (Va. Cir. Ct. 1998)
(finding that three defendants with a common interest and a non-party to the litigation which shared that interest may exchange information "for the purposes of assisting in their defense" without waiving the work product doctrine protection; "[W]hile the mere showing of a voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client privilege, it should not suffice in itself for waiver of the work product privilege." (citing Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 76-77 (E.D. Va. 1998)))

Case Date Jurisidction State Cite Checked
1998-01-01 State VA

Chapter: 47.5

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 76 (E.D. Va. 1998)
("The law regarding third-party waiver of work product protection is completely different. The attorney-client privilege exists to encourage the client to communicate with his lawyer. Work product protection, on the other hand, exists to encourage an attorney to prepare effectively for litigation. It would be consistent with the purpose of the work product protection to encourage sharing of the material with anyone who could help the attorney prepare for trial. It would completely stand the work product doctrine on its head to allow discovery of an attorney's work product simply because that attorney shared it with someone who was helping him prepare for litigation."), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA

Chapter: 47.5

Case Name: In re Doe, 662 F.2d 1073, 1081, 1082 (4th Cir. 1981)
("The attorney and client can forfeit this advantage, but their actions effecting the forfeiture or waiver must be consistent with a conscious disregard of the advantage that is otherwise protected by the work product rule. Disclosure to a person with an interest common to that of the attorney or client normally is not inconsistent with an intent to invoke the work product doctrine's protection and would not amount to such a waiver. However, when an attorney freely and voluntarily discloses the contents of otherwise protected work product to someone with interests adverse to his or those of the client, knowingly increasing the possibility that an opponent will obtain and use the material, he may be deemed to have waived work product protection."; holding that a lawyer had waived the work product protection by unconditionally releasing materials to the client and failing to "take steps to limit the future use of those documents."), cert. denied, 455 U.S. 1000 (1982)

Case Date Jurisidction State Cite Checked
1981-01-01 Federal

Chapter: 47.202

Case Name: McKinstry v. Genser (In re Black Diamond Mining Co.), Civ. No. 13-125-ART, 2014 U.S. Dist. LEXIS 36992 (E.D. Ky. Mar. 19, 2014)
May 14, 2014 (PRIVILEGE POINT)

"Courts Confirm Bankruptcy Trustees' Power"

In In re Amerlink, Ltd., Ch. 7 Case No. 09-01055-8-RDD, 2014 Bankr. LEXIS 813 (Bankr. E.D.N.C. Mar. 3, 2014), a Chapter 11 Trustee filed and then settled numerous adversary proceedings, including an action against several of the debtor's senior executives. Some of those executives later filed a state court action against other executives. The Trustee (still possessing the power to waive the debtor's privilege after conversion to Chapter 7) agreed to waive the privilege. The state court plaintiff resisted the waiver, but the court confirmed that the "Trustee has full authority and discretion to determine if a waiver is appropriate." Id. at *9. Two weeks later, another court dealt with a more complicated situation. In McKinstry v. Genser (In re Black Diamond Mining Co.), Civ. No. 13-125-ART, 2014 U.S. Dist. LEXIS 36992 (E.D. Ky. Mar. 19, 2014), Jones Day represented a debtor during a Chapter 11 restructuring. The Trustee charged with liquidating some of the debtor's assets later sued several defendants for mismanagement during the reorganization. The Trustee sought Jones Day's file, but the law firm resisted. Although acknowledging that the Trustee was not the legal "successor" to the debtor, the court concluded that "[w]hatever one calls the Trustee's relationship to [the debtor], Jones Day's argument against turnover is equivalent to invoking work-product product protection against its own client." Id. at *13. The court compelled Jones Day to produce its files to the Trustee.

Lawyers advising corporate clients teetering on the edge of bankruptcy should remember that their files may fall under the control of a trustee whose job is to search for deep pockets, and who may want to examine the law firm's files for helpful documents created during the frantic time leading up to the bankruptcy.

Case Date Jurisidction State Cite Checked
2014-03-19 Federal KY
Comment:

key case


Chapter: 47.202

Case Name: In re Amerlink, Ltd., Ch. 7 Case No. 09-01055-8-RDD, 2014 Bankr. LEXIS 813 (Bankr. E.D.N.C. Mar. 3, 2014)
May 14, 2014 (PRIVILEGE POINT)

"Courts Confirm Bankruptcy Trustees' Power"

In In re Amerlink, Ltd., Ch. 7 Case No. 09-01055-8-RDD, 2014 Bankr. LEXIS 813 (Bankr. E.D.N.C. Mar. 3, 2014), a Chapter 11 Trustee filed and then settled numerous adversary proceedings, including an action against several of the debtor's senior executives. Some of those executives later filed a state court action against other executives. The Trustee (still possessing the power to waive the debtor's privilege after conversion to Chapter 7) agreed to waive the privilege. The state court plaintiff resisted the waiver, but the court confirmed that the "Trustee has full authority and discretion to determine if a waiver is appropriate." Id. at *9. Two weeks later, another court dealt with a more complicated situation. In McKinstry v. Genser (In re Black Diamond Mining Co.), Civ. No. 13-125-ART, 2014 U.S. Dist. LEXIS 36992 (E.D. Ky. Mar. 19, 2014), Jones Day represented a debtor during a Chapter 11 restructuring. The Trustee charged with liquidating some of the debtor's assets later sued several defendants for mismanagement during the reorganization. The Trustee sought Jones Day's file, but the law firm resisted. Although acknowledging that the Trustee was not the legal "successor" to the debtor, the court concluded that "[w]hatever one calls the Trustee's relationship to [the debtor], Jones Day's argument against turnover is equivalent to invoking work-product product protection against its own client." Id. at *13. The court compelled Jones Day to produce its files to the Trustee.

Lawyers advising corporate clients teetering on the edge of bankruptcy should remember that their files may fall under the control of a trustee whose job is to search for deep pockets, and who may want to examine the law firm's files for helpful documents created during the frantic time leading up to the bankruptcy.

Case Date Jurisidction State Cite Checked
2014-03-03 Federal NC
Comment:

key case


Chapter: 47.203

Case Name: B.M.I. Interior Yacht Refinishing, Inc. v. M/Y Claire, Case No. 13-62676-CIV-Williams/SIMONTON, 2015 U.S. Dist. LEXIS 91903 (S.D. Fla. July 15, 2015)
("[A]n attorney has an independent interest in privacy of his or her work product, even when the client has waived its own claim, as long as invoking the privilege would not harm the client's interests.")

Case Date Jurisidction State Cite Checked
2015-07-15 Federal FL
Comment:

key case


Chapter: 47.203

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 619 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "Immunity from production of work-product materials may be asserted by either the attorney or the client, and each can waive that immunity, but only as to herself, as both the attorney and the client benefit from the privilege.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 47.204

Case Name: Calandro v. Sedgwick Claims Mgmt. Svcs., Inc., Civ. A. No. 15-10533-PBS, 2015 U.S. Dist. LEXIS 163622 (D. Mass. Dec. 7, 2015)
(analyzing work product issues in a bad faith insurance claim; "The plaintiff argues that work product protection does not apply because Sedgwick has waived any claims of privilege in this case. . . . This argument too is insufficient to justify discovery. 'Unlike the attorney-client privilege, which belongs only to the client, the protections of Rule 26(b)(3) . . . May be claimed by either the client or the attorney.'. . . 'The fact that the client waives the privilege does not mean that protection is lost; the attorney may contest disclosure even if the face of a client's waiver.'").

Case Date Jurisidction State Cite Checked
2015-12-07 Federal MA

Chapter: 47.205

Case Name: McKinstry v. Genser (In re Black Diamond Mining Co.), Civ. No. 13-125-ART, 2014 U.S. Dist. LEXIS 36992 (E.D. Ky. Mar. 19, 2014)
May 14, 2014 (PRIVILEGE POINT)

"Courts Confirm Bankruptcy Trustees' Power"

In In re Amerlink, Ltd., Ch. 7 Case No. 09-01055-8-RDD, 2014 Bankr. LEXIS 813 (Bankr. E.D.N.C. Mar. 3, 2014), a Chapter 11 Trustee filed and then settled numerous adversary proceedings, including an action against several of the debtor's senior executives. Some of those executives later filed a state court action against other executives. The Trustee (still possessing the power to waive the debtor's privilege after conversion to Chapter 7) agreed to waive the privilege. The state court plaintiff resisted the waiver, but the court confirmed that the "Trustee has full authority and discretion to determine if a waiver is appropriate." Id. at *9. Two weeks later, another court dealt with a more complicated situation. In McKinstry v. Genser (In re Black Diamond Mining Co.), Civ. No. 13-125-ART, 2014 U.S. Dist. LEXIS 36992 (E.D. Ky. Mar. 19, 2014), Jones Day represented a debtor during a Chapter 11 restructuring. The Trustee charged with liquidating some of the debtor's assets later sued several defendants for mismanagement during the reorganization. The Trustee sought Jones Day's file, but the law firm resisted. Although acknowledging that the Trustee was not the legal "successor" to the debtor, the court concluded that "[w]hatever one calls the Trustee's relationship to [the debtor], Jones Day's argument against turnover is equivalent to invoking work-product product protection against its own client." Id. at *13. The court compelled Jones Day to produce its files to the Trustee.

Lawyers advising corporate clients teetering on the edge of bankruptcy should remember that their files may fall under the control of a trustee whose job is to search for deep pockets, and who may want to examine the law firm's files for helpful documents created during the frantic time leading up to the bankruptcy.

Case Date Jurisidction State Cite Checked
2014-03-19 Federal KY
Comment:

key case


Chapter: 47.205

Case Name: In re Amerlink, Ltd., Ch. 7 Case No. 09-01055-8-RDD, 2014 Bankr. LEXIS 813 (Bankr. E.D.N.C. Mar. 3, 2014)
May 14, 2014 (PRIVILEGE POINT)

"Courts Confirm Bankruptcy Trustees' Power"

In In re Amerlink, Ltd., Ch. 7 Case No. 09-01055-8-RDD, 2014 Bankr. LEXIS 813 (Bankr. E.D.N.C. Mar. 3, 2014), a Chapter 11 Trustee filed and then settled numerous adversary proceedings, including an action against several of the debtor's senior executives. Some of those executives later filed a state court action against other executives. The Trustee (still possessing the power to waive the debtor's privilege after conversion to Chapter 7) agreed to waive the privilege. The state court plaintiff resisted the waiver, but the court confirmed that the "Trustee has full authority and discretion to determine if a waiver is appropriate." Id. at *9. Two weeks later, another court dealt with a more complicated situation. In McKinstry v. Genser (In re Black Diamond Mining Co.), Civ. No. 13-125-ART, 2014 U.S. Dist. LEXIS 36992 (E.D. Ky. Mar. 19, 2014), Jones Day represented a debtor during a Chapter 11 restructuring. The Trustee charged with liquidating some of the debtor's assets later sued several defendants for mismanagement during the reorganization. The Trustee sought Jones Day's file, but the law firm resisted. Although acknowledging that the Trustee was not the legal "successor" to the debtor, the court concluded that "[w]hatever one calls the Trustee's relationship to [the debtor], Jones Day's argument against turnover is equivalent to invoking work-product product protection against its own client." Id. at *13. The court compelled Jones Day to produce its files to the Trustee.

Lawyers advising corporate clients teetering on the edge of bankruptcy should remember that their files may fall under the control of a trustee whose job is to search for deep pockets, and who may want to examine the law firm's files for helpful documents created during the frantic time leading up to the bankruptcy.

Case Date Jurisidction State Cite Checked
2014-03-03 Federal NC
Comment:

key case


Chapter: 47.302

Case Name: Thompson v. City of Oakwood, Ohio, Case No. 3:16-cv-169, 2017 U.S. Dist. LEXIS 49157 (S.D. Ohio March 31, 2017)
(holding that disclosing work product to a witness waived that protection, because a defendant could subpoena the documents; "Defendants seek the production of communications between Plaintiffs' counsel and Gayle Hites, a non-party witness."; "Here, Defendants made the communications at issue in a manner that enabled Defendants to obtain access to them, waiving the protection of the attorney work product doctrine. The communications were between Plaintiffs' counsel and Ms. Hites, a non-party witness. Plaintiffs have not argued -- nor could they -- that Ms. Hites is not subject to discovery."; "Defendants have subpoenaed Ms. Hites for deposition and the production of documents. They cannot obtain copies of the communications from Ms. Hites, however, because she is in the process of moving and, as represented by Plaintiffs' counsel, 'is not good with technology and does not know how to get the information off of her computer, etc.'"; "[B]ecause Ms. Hites does not have access to the communications, Defendants cannot obtain them from anyone other than Plaintiffs' counsel.")

Case Date Jurisidction State Cite Checked
2017-03-31 Federal OH
Comment:

key case


Chapter: 47.302

Case Name: In re Doe, 662 F.2d 1073, 1081, 1082 (4th Cir. 1981)
("The attorney and client can forfeit this advantage, but their actions effecting the forfeiture or waiver must be consistent with a conscious disregard of the advantage that is otherwise protected by the work product rule. Disclosure to a person with an interest common to that of the attorney or client normally is not inconsistent with an intent to invoke the work product doctrine's protection and would not amount to such a waiver. However, when an attorney freely and voluntarily discloses the contents of otherwise protected work product to someone with interests adverse to his or those of the client, knowingly increasing the possibility that an opponent will obtain and use the material, he may be deemed to have waived work product protection."; holding that a lawyer had waived the work product protection by unconditionally releasing materials to the client and failing to "take steps to limit the future use of those documents."), cert. denied, 455 U.S. 1000 (1982)

Case Date Jurisidction State Cite Checked
1981-01-01 Federal

Chapter: 47.401

Case Name: Bousamra v. Excela Health, No. 1637 WDA 2015, 2017 Pa. Super. LEXIS 166 (Pa. Super. Ct. March 13, 2017)
("[I]n T.M. v. Elwyn, Inc., supra [T.M. v. Elwyn, Inc., 2008 PA Super 113, 950 A.2d 1050, 1063 (Pa.Super. 2008)], we analyzed the attorney client and work product privileges coextensively under the same legal rubric and suggested that the work product privilege was subject to waiver under the same principles as those applied in the context of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2017-03-13 State PA

Chapter: 47.401

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *22-23 (E.D. Va. Dec. 14, 2012)
("[T]he production of the final draft of a document waives work product protection as to that draft. Nevertheless, this does not lead to the waiver of work product protection for the earlier drafts of the document. This position is in line with the general view that the waiver of the work product protection as to the final draft of a document does not constitute a waiver of the earlier versions of the draft.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA B 9/13

Chapter: 47.402

Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; finding that plaintiffs could not overcome the work product protection; finding that a work product doctrine was not lost by the internal circulation of the report; finding that another court's compelled disclosure of the report did not trigger a waiver; "Bard actively opposed the use of the Report during trial and moved to seal the Report at the conclusion of the trial. . . . Bard's compelled disclosure was not a waiver of its work product protection.")

Case Date Jurisidction State Cite Checked
2016-02-11 Federal AZ

Chapter: 47.402

Case Name: Krys v. Paul, Weiss, Rifkind, Wharton, & Garrison LLP (In re China Med. Techs., Inc.), 539 B.R. 643 (S.D.N.Y. 2015)
(holding that a bankruptcy liquidator could waive the attorney-client privilege that belonged to a company's Audit Committee, but could not waive the Audit Committee's work product protection, which belonged solely or jointly to the Audit Committee's lawyer's at Paul Weiss; "The issue now before the Court is whether the capacity of the Audit Committee to retain independent counsel and to conduct unfettered internal investigations that implicate corporate management should thwart the statutory obligation of a trustee in bankruptcy to maximize the value of the estate by conducting investigations into a corporation's prebankruptcy affairs."; "Weintraub did not squarely address the circumstances here. Its analysis was limited to whether privileges asserted by a corporation's counsel were waivable by that corporation's trustee in bankruptcy. The asserted privileges here relate to an investigation by Appellees on behalf of a corporation's audit committee, and the precise relationship between that committee and the corporation is disputed. Despite these factual distinctions, however, the same considerations that weighed in favor of the trustee in Weintraub weigh in favor of Appellant here."; "It is true that the Audit Committee was 'independent' in some sense. It could retain counsel, and it legitimately expected that its communications with counsel would be protected against intrusion by management. But the Audit Committee is not an individual, nor is its status analogous to that of an individual. Instead, it was a committee constituted by CMED's Board of Directors, and thus a critical component of CMED's management infrastructure."; "[T]he justifications for protected attorney-client communications dissipate in bankruptcy. Prebankruptcy, audit committees 'play a critical role in monitoring corporate management and a corporation's auditor.'. . . Without the prebankruptcy protection of attorney-client privilege, audit committees could not provide 'independent review and oversight of a company's financial reporting processes, internal controls and independent auditors,' nor could they offer a 'forum separate from management in which auditors and other interested parties [could] candidly discuss concerns.' SEC Release No. 8220, 'Standards Relating to Listed Company Audit Committees,' File No. 87-02-03, 79 SEC Docket 2876, 2003 WL 1833875, at *19 (Apr. 9, 2003). But as the Bankruptcy Court noted in its Opinion, 'any miscreants have left the company' in bankruptcy, Op. 17; corporate management is deposed in favor of the trustee, and there is no longer a need to insulate committee-counsel communications from managerial intrusion. Without a legitimate fear of managerial intrusion or retaliation in bankruptcy, Appellees' assertions as to a potential chilling effect ring hollow."; "Although the Court recognizes that this is a difficult issue in a largely ill-defined area of the law, it nevertheless respectfully disagrees with the legal determination of the Bankruptcy Court below. The Court finds that Appellant, as CMED's Liquidator, now owns and can thus waive the Audit Committee's attorney-client privilege, regardless of the Committee's prebankruptcy independence. The Bankruptcy Court's ruling to the contrary is hereby reversed."; "The Court's ruling as to attorney-client privilege does not extend, however, to Appellees' assertion of work product protections, which the Bankruptcy Court Opinion only peripherally addressed. . . . Importantly, because 'work product protection belongs to the Audit Committee's counsel and cannot be waived by the client' . . . It does not fall within the ambit of Weintraub. . . . Thus, even assuming that the Liquidator owns those documents for which Appellees have asserted work-product protection, he cannot waive this protection unilaterally. Appellant, at the very least, has not cited any cases suggesting otherwise.")

Case Date Jurisidction State Cite Checked
2015-01-01 Federal NY

Chapter: 47.404

Case Name: Alaska Elec. Pension Fund v. Bank of America Corp., 14-CV-7126 (JMF), 2017 U.S. Dist. LEXIS 8141 (S.D.N.Y. Jan. 20, 2017)
(finding it unnecessary to decide if it is possible to avoid waiving work product protection when disclosing work product to the government; noting that the UBS had created the documents to file a government action, and had entered into an agreement with the government to keep any of the documents confidential; rejecting defendant UBS's argument that allowing the government to review the documents but not keep them avoided a waiver; "Finally, there is no merit to UBS's creative suggestion that waiver of the work-product doctrine does not apply where materials are merely shown, and not physically provided, to a government agency. . . . In support of that assertion, UBS cites only two cases, one of which is a lower court New York state case and the other of which was decided in 1954.")

Case Date Jurisidction State Cite Checked
2017-01-20 Federal NY

Chapter: 47.404

Case Name: Koninklijke Philips Elects. N.V. v. Zoll Med. Corp., Civ. No. 10 11041 NMG, 2013 U.S. Dist. LEXIS 28862, at *9-10 (D. Mass. Mar. 4, 2013)
("ZOLL cannot avoid disclosure by disavowing any intent to use the requested information in the future. . . . It already has 'relie[d] on that information to support its infringement claims' by repeatedly citing it throughout the preliminary infringement contentions, and those citations suggest 'the test data supports . . . [ZOLL's] contentions.' . . . As such, it is relevant and, given ZOLL's waiver of any work product protection, discoverable.")

Case Date Jurisidction State Cite Checked
2013-03-04 Federal MA B 3/14

Chapter: 47.406

Case Name: Manheim Auto. Fin. Servs. v. Oltmann (In re Oltmann), Ch. 7 Case No. 07-19488 HRT, Adv. No. 07-1753 HRT, 2013 Bankr. LEXIS 412, at *7, *8 (D. Colo. Feb. 1, 2013)
(inexplicably finding that a litigant waived work product protection for an investigator's work by using information uncovered by the investigator in answering other discovery; "Plaintiff used information discovered by its investigator to respond to interrogatory questions and to respond to questions put to the Plaintiff's designated representative during her deposition. There is no element here of the Plaintiff using the investigator's report to prove a point or seek an advantage and then deny the Defendant the ability to inquire into the veracity of the information so used. The opposite occurred in this case."; "[T]he Plaintiff used its attorney's work product to provide complete responses to the Defendant's discovery. Its use was not testimonial because Plaintiff sought no affirmative advantage by its use of the work product. To adopt a doctrine that destroys attorney work product protection upon any disclosure of work product goes too far and is not consistent with Nobles [United States v. Nobles, 422 U.S. 225 (1975)]. The teaching of Nobles is that a voluntary partial disclosure of non-opinion work product may work a subject matter waiver when the disclosure is used by the disclosing party as a sword to gain a tactical advantage in the litigation.")

Case Date Jurisidction State Cite Checked
2013-02-01 Federal CO B 1/14

Chapter: 47.406

Case Name: Lebbon v. City of Peoria, No. CV-12-00921-PHX-GMS, 2013 U.S. Dist. LEXIS 13146, at *3-4 (D. Ariz. Jan. 31, 2013)
(in a somewhat ambiguous explanation, arguably finding that disclosure of facts uncovering during an investigation waived the attorney-client privilege and the work product doctrine; "Here, Defendants disclosed the contents of the 2010 Investigation by citing to factual findings from the Investigation in their 2011 Memo to Lebbon. . . . By setting out those findings in the Memo, Defendants 'substantially increased the opportunity' for Lebbon to obtain that information. Defendants have thus waived any work product privilege they might have had regarding such information in the 2010 Investigation.")

Case Date Jurisidction State Cite Checked
2013-01-31 Federal AZ B 7/13

Chapter: 47.407

Case Name: Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057, 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
(finding that Harleysville's parent company waived both its privilege and its work product protection by sloppily loading privileged and work product-protected documents to a publicly available internet site; also relying on Virginia Bar legal ethics opinions in describing defendant's lawyer's obligation to have stopped reading the documents upon noticing that they were protected, but not disqualifying defendant's lawyer; "While not binding on this, or any, court, the Virginia State Bar Standing Committee on Legal Ethics has issued at least two Legal Ethics Opinions that address what the proper conduct should be when an attorney receives information an opposing party may claim as privileged or protected from disclosure."; "While LEO No. 1702 was issued before the adoption of the Rules of Professional Conduct, its continuing validity recently was reaffirmed by the committee. In LEO No. 1871, issued July 24, 2013, the committee addressed an attorney's responsibility when a document containing privileged information was discovered among documents produced by opposing counsel for review in discovery. The committee opined that LEO No. 1702 required the receiving attorney to promptly notify opposing counsel that the document had been produced. The committee also opined that the reviewing attorney should have 'either sequestered or destroyed his copy of the [document] pending a judicial determination of whether he could use the document.'"; "In this case, defense counsel have admitted that they accessed the Box Site by the hyperlink provided in the email from Cesario to Rowe. The face of this email contained the Confidentiality Notice, which should have provided sufficient notice to defense counsel that the sender was asserting that the information was protected from disclosure. Nonetheless, defense counsel downloaded the Claims File from the Box Site, did not reveal to Harleysville's counsel that they had obtained and reviewed the Claims File and further disseminated the Claims File to their clients and to law enforcement officials. At no time prior to the filing of the Motion, did defense counsel seek a determination from this court with regard to whether the materials they received were privileged or protected and what, if any, use they could make of the materials in this litigation. The only action defense counsel claim they took in response to discovering that they had access to Harleysville's Claims File -- calling the Virginia State Bar Ethics Hotline for advice -- belies any claim that they believed that their receipt and use of the materials without Harleysville's knowledge was proper under the circumstances."; "This court should demand better, and the ruling here is intended not to merely tolerate the bare minimum ethically compliant behavior, but, instead, to encourage the highest professional standards from those attorneys who practice before the court. The court holds that, by using the hyperlink contained in the email also containing the Confidentiality Notice to access the Box Site, defense counsel should have realized that the Box Site might contain privileged or protected information. This belief should have been further confirmed when defense counsel realized that the Box Site contained not only the Video, but Harleysville's Claims File. That being the case, defense counsel should have contacted Harleysville's counsel and revealed that it had access to this information. If defense counsel believed that the circumstances which allowed its access to the information waived any claim of privilege or protection, they should have asked the court to decide the issue before making any use of or disseminating the information. Counsel chose not to do so, however, and, therefore, the court believes that such conduct requires some sanction."; "Based on the decision that the posting of the Claims File to the internet waived any attorney-client privilege or any work-product protection over the information contained in the file, I find that the disqualification of defense counsel is not warranted in this situation. The disqualification of counsel is an extreme sanction. See Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 145 (4th Cir. 1992); Rogers v. Pittston Co., 800 F. Supp. 350, 353 (W.D. Va. 1992). Disqualification of counsel must be decided on a case-by-case basis with consideration of the harm imposed should counsel's representation continue. See Rogers, 800 F. Supp. at 353. Harleysville urges that such a sanction is necessary since all defense counsel have reviewed the Claims File. However, even if current counsel were disqualified, based on the court's ruling on waiver, substitute counsel would have access to the same information. Therefore, there can be no harm to Harleysville by allowing defense counsel to remain in this case. See Aetna Cas. & Sur. Co. v. United States, 570 F.2d 1197, 1201 (4th Cir. 1978) (disqualification inapplicable where 'practical considerations' eliminate any real harm). Therefore, I find that the more reasonable sanction is that defense counsel should bear the cost of the parties in obtaining the court's ruling on the matter.")

Case Date Jurisidction State Cite Checked
2017-02-09 Federal VA
Comment:

key case


Chapter: 47.407

Case Name: Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057, 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
(finding that Harleysville's parent company waived both its privilege and its work product protection by sloppily loading privileged and work product-protected documents to a publicly available internet site; also relying on Virginia Bar legal ethics opinions in describing defendant's lawyer's obligation to have stopped reading the documents upon noticing that they were protected, but not disqualifying defendant's lawyer; "The Virginia Supreme Court addressed the difference between involuntary and inadvertent disclosures of privileged information in Walton [Walton v. Mid--Atl. Spine Specialists, 280 Va. 113, 694 S.E.2d 545, 549 (Va. 2010)]. . . .'..[I]n the waiver context, involuntary means that another person accomplished the disclosure through criminal activity or bad faith, without the consent of the proponent of the privilege. . . .'. . . Inadvertent disclosure, on the other hand, includes action by the proponent of the privilege to knowingly, but mistakenly, produce a document or to unknowingly provide access to a document by failing to implement sufficient precautions to maintain its confidentiality. . . . The court further reasoned that the determination of whether a disclosure was involuntary does not rest on the subjective intent of the proponent of the privilege."; "Harleysville has conceded that its agent, Cesario, an employee of its parent company, intentionally and knowingly uploaded its Claims File to the Box Site. Under these facts, I find that the disclosure was not involuntary but, rather, was inadvertent under Virginia state law, in that Harleysville unknowingly provided access to information by failing to implement sufficient precautions to maintain its confidentiality."; "With regard to the reasonableness of the precautions taken to prevent the disclosure, the court has no evidence before it that any precautions were taken to prevent this disclosure. . . . this employee purposefully uploaded the Claims File to the Box Site, making it accessible to anyone with access to the internet, thus making the extent of the disclosure vast."; "I find that Harleysville has waived any claim of attorney-client privilege with regard to the information posted to the Box Site. It has conceded that the Box Site was not password protected and that the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise. In essence, Harleysville has conceded that its actions were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to image an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web."; "The court believes that its decision on this issue fosters the better public policy. The technology involved in information sharing is rapidly evolving. Whether a company chooses to use a new technology is a decision within that company's control. If it chooses to use a new technology, however, it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information."; "Harleysville's disclosure should not be considered 'inadvertent' under federal law. Harleysville has not claimed that its agent's posting of its Claims File to the Box Site was not an intentional act. Also, based on my reasoning above, I cannot find that Harleysville, or its counsel, took reasonable steps to prevent its disclosure or to rectify the situation. Therefore, I find that Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine. Also, under the prior precedent, the agent's actions in posting the Claims File where it could be accessed by anyone on the internet is certainly a release of protected information in a way that did not limit its future use.")

Case Date Jurisidction State Cite Checked
2017-02-09 Federal VA
Comment:

key case


Chapter: 47.407

Case Name: Holzman Corkery PLLC v. Macomb Interceptor Drain Drainage Dist., No. 309230, 2013 Mich. App. LEXIS 1149, at *5 (Mich. Ct. App. June 25, 2013)
(holding that reference to a privilege report did not result in a waiver; "[P]laintiff's claim that the information has been disclosed is based wholly on a reference to existence of the report in one paragraph of the federal complaint. The complaint does not quote from the report nor disclose its analysis. We do not find a mere reference to the document's existence to constitute a waiver of the work product privilege under FOIA.")

Case Date Jurisidction State Cite Checked
2013-06-25 State MI B 4/14

Chapter: 47.408

Case Name: Holzman Corkery PLLC v. Macomb Interceptor Drain Drainage Dist., No. 309230, 2013 Mich. App. LEXIS 1149, at *5 (Mich. Ct. App. June 25, 2013)
(holding that reference to a privilege report did not result in a waiver; "[P]laintiff's claim that the information has been disclosed is based wholly on a reference to existence of the report in one paragraph of the federal complaint. The complaint does not quote from the report nor disclose its analysis. We do not find a mere reference to the document's existence to constitute a waiver of the work product privilege under FOIA.")

Case Date Jurisidction State Cite Checked
2013-06-25 State MI B 4/14

Chapter: 47.408

Case Name: In re S<3> LTD., 252 B.R. 355, 366 (E.D. Va. 2000)
("Based on In re Martin Marietta [United States v. Pollard (In re Martin Marietta Corp.), 856 F.2d 619 (4th Cir. 1988)], this statement makes testimonial use of Vander Schaaf's report since it appears, from the Court's in camera inspection, that the allegations contained in the statement are taken almost verbatim from the report. Not only does S<3> make the general statement regarding fraud, but also states with particularity the grounds for its belief. Thus, while, in some instances, S<3> does not quote from the Vander Schaaf Report exactly, the Disclosure sufficiently paraphrases the report to the point that S<3> actually discloses all of the pure mental impressions contained in Vander Schaaf's report. Therefore, S<3> has waived the work-product privilege with respect to all of the opinion work product contained in the report.")

Case Date Jurisidction State Cite Checked
2000-01-01 Federal VA

Chapter: 47.409

Case Name: Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057, 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
(finding that Harleysville's parent company waived both its privilege and its work product protection by sloppily loading privileged and work product-protected documents to a publicly available internet site; also relying on Virginia Bar legal ethics opinions in describing defendant's lawyer's obligation to have stopped reading the documents upon noticing that they were protected, but not disqualifying defendant's lawyer; "The Virginia Supreme Court addressed the difference between involuntary and inadvertent disclosures of privileged information in Walton [Walton v. Mid--Atl. Spine Specialists, 280 Va. 113, 694 S.E.2d 545, 549 (Va. 2010)]. . . .'..[I]n the waiver context, involuntary means that another person accomplished the disclosure through criminal activity or bad faith, without the consent of the proponent of the privilege. . . .'. . . Inadvertent disclosure, on the other hand, includes action by the proponent of the privilege to knowingly, but mistakenly, produce a document or to unknowingly provide access to a document by failing to implement sufficient precautions to maintain its confidentiality. . . . The court further reasoned that the determination of whether a disclosure was involuntary does not rest on the subjective intent of the proponent of the privilege."; "Harleysville has conceded that its agent, Cesario, an employee of its parent company, intentionally and knowingly uploaded its Claims File to the Box Site. Under these facts, I find that the disclosure was not involuntary but, rather, was inadvertent under Virginia state law, in that Harleysville unknowingly provided access to information by failing to implement sufficient precautions to maintain its confidentiality."; "With regard to the reasonableness of the precautions taken to prevent the disclosure, the court has no evidence before it that any precautions were taken to prevent this disclosure. . . . this employee purposefully uploaded the Claims File to the Box Site, making it accessible to anyone with access to the internet, thus making the extent of the disclosure vast."; "I find that Harleysville has waived any claim of attorney-client privilege with regard to the information posted to the Box Site. It has conceded that the Box Site was not password protected and that the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise. In essence, Harleysville has conceded that its actions were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to image an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web."; "The court believes that its decision on this issue fosters the better public policy. The technology involved in information sharing is rapidly evolving. Whether a company chooses to use a new technology is a decision within that company's control. If it chooses to use a new technology, however, it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information."; "Harleysville's disclosure should not be considered 'inadvertent' under federal law. Harleysville has not claimed that its agent's posting of its Claims File to the Box Site was not an intentional act. Also, based on my reasoning above, I cannot find that Harleysville, or its counsel, took reasonable steps to prevent its disclosure or to rectify the situation. Therefore, I find that Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine. Also, under the prior precedent, the agent's actions in posting the Claims File where it could be accessed by anyone on the internet is certainly a release of protected information in a way that did not limit its future use.")

Case Date Jurisidction State Cite Checked
2017-02-09 Federal VA
Comment:

key case


Chapter: 47.409

Case Name: Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057, 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
(finding that Harleysville's parent company waived both its privilege and its work product protection by sloppily loading privileged and work product-protected documents to a publicly available internet site; also relying on Virginia Bar legal ethics opinions in describing defendant's lawyer's obligation to have stopped reading the documents upon noticing that they were protected, but not disqualifying defendant's lawyer; "While not binding on this, or any, court, the Virginia State Bar Standing Committee on Legal Ethics has issued at least two Legal Ethics Opinions that address what the proper conduct should be when an attorney receives information an opposing party may claim as privileged or protected from disclosure."; "While LEO No. 1702 was issued before the adoption of the Rules of Professional Conduct, its continuing validity recently was reaffirmed by the committee. In LEO No. 1871, issued July 24, 2013, the committee addressed an attorney's responsibility when a document containing privileged information was discovered among documents produced by opposing counsel for review in discovery. The committee opined that LEO No. 1702 required the receiving attorney to promptly notify opposing counsel that the document had been produced. The committee also opined that the reviewing attorney should have 'either sequestered or destroyed his copy of the [document] pending a judicial determination of whether he could use the document.'"; "In this case, defense counsel have admitted that they accessed the Box Site by the hyperlink provided in the email from Cesario to Rowe. The face of this email contained the Confidentiality Notice, which should have provided sufficient notice to defense counsel that the sender was asserting that the information was protected from disclosure. Nonetheless, defense counsel downloaded the Claims File from the Box Site, did not reveal to Harleysville's counsel that they had obtained and reviewed the Claims File and further disseminated the Claims File to their clients and to law enforcement officials. At no time prior to the filing of the Motion, did defense counsel seek a determination from this court with regard to whether the materials they received were privileged or protected and what, if any, use they could make of the materials in this litigation. The only action defense counsel claim they took in response to discovering that they had access to Harleysville's Claims File -- calling the Virginia State Bar Ethics Hotline for advice -- belies any claim that they believed that their receipt and use of the materials without Harleysville's knowledge was proper under the circumstances."; "This court should demand better, and the ruling here is intended not to merely tolerate the bare minimum ethically compliant behavior, but, instead, to encourage the highest professional standards from those attorneys who practice before the court. The court holds that, by using the hyperlink contained in the email also containing the Confidentiality Notice to access the Box Site, defense counsel should have realized that the Box Site might contain privileged or protected information. This belief should have been further confirmed when defense counsel realized that the Box Site contained not only the Video, but Harleysville's Claims File. That being the case, defense counsel should have contacted Harleysville's counsel and revealed that it had access to this information. If defense counsel believed that the circumstances which allowed its access to the information waived any claim of privilege or protection, they should have asked the court to decide the issue before making any use of or disseminating the information. Counsel chose not to do so, however, and, therefore, the court believes that such conduct requires some sanction."; "Based on the decision that the posting of the Claims File to the internet waived any attorney-client privilege or any work-product protection over the information contained in the file, I find that the disqualification of defense counsel is not warranted in this situation. The disqualification of counsel is an extreme sanction. See Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 145 (4th Cir. 1992); Rogers v. Pittston Co., 800 F. Supp. 350, 353 (W.D. Va. 1992). Disqualification of counsel must be decided on a case-by-case basis with consideration of the harm imposed should counsel's representation continue. See Rogers, 800 F. Supp. at 353. Harleysville urges that such a sanction is necessary since all defense counsel have reviewed the Claims File. However, even if current counsel were disqualified, based on the court's ruling on waiver, substitute counsel would have access to the same information. Therefore, there can be no harm to Harleysville by allowing defense counsel to remain in this case. See Aetna Cas. & Sur. Co. v. United States, 570 F.2d 1197, 1201 (4th Cir. 1978) (disqualification inapplicable where 'practical considerations' eliminate any real harm). Therefore, I find that the more reasonable sanction is that defense counsel should bear the cost of the parties in obtaining the court's ruling on the matter.")

Case Date Jurisidction State Cite Checked
2017-02-09 Federal VA
Comment:

key case


Chapter: 47.409

Case Name: Menasha Corp. v. United States DOJ, 707 F.3d 846, 847 (7th Cir. 2013)
(in a FOIA action, finding that the disclosure by certain Department of Justice lawyers to other lawyers did not waive the government's work product protection; "[S]ince the purpose of the privilege is to hide internal litigation preparations from adverse parties, disclosure of work product to such a party forfeits the privilege.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 3/14

Chapter: 47.410

Case Name: Rivera v. Allstate Ins. Co., No. 10 C 1733, 2013 U.S. Dist. LEXIS 83761, at *9 (N.D. Ill. June 14, 2013)
(holding that Allstate waived both privilege and work product protection by disclosing documents to the SEC and the Department of Labor; "We adopt the Sixth Circuit's reasoning in Columbia/HCA Healthcare [In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289 (6th Cir. 2002)] here and reject the application of selective waiver. Allstate waived any privilege or protection associated with the documents at issue by producing them to the SEC and DOL; therefore, they must be produced to plaintiffs.")

Case Date Jurisidction State Cite Checked
2013-06-14 Federal IL B 4/14

Chapter: 47.501

Case Name: Bousamra v. Excela Health, No. 1637 WDA 2015, 2017 Pa. Super. LEXIS 166 (Pa. Super. Ct. March 13, 2017)
("[I]n T.M. v. Elwyn, Inc., supra [T.M. v. Elwyn, Inc., 2008 PA Super 113, 950 A.2d 1050, 1063 (Pa.Super. 2008)], we analyzed the attorney client and work product privileges coextensively under the same legal rubric and suggested that the work product privilege was subject to waiver under the same principles as those applied in the context of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2017-03-13 State PA

Chapter: 47.501

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("Work-product protection may be waived where the communications are disclosed in a manner which substantially increases the opportunity for potential adversaries to obtain the information.")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal IL

Chapter: 47.502

Case Name: Breslow v. American Security Insurance Co., Case No. 14-62834-CIV-GOODMAN, 2016 U.S. Dist. LEXIS 21133 (S.D. Fla. Feb. 19, 2016)
(analyzing privilege protection in a first party insurance situation; finding the work product doctrine did not apply at a time plaintiff's lawyer sought a resolution of the dispute without resorting to litigation; inexplicably finding that the plaintiff had used the work product protection by sharing work product with a property manager responsible for both the plaintiff's property and the property of another neighbor whose action caused the damage for which the plaintiff sought insurance coverage; "Thus, the first factor to focus on is whether Breslow had any rational reason to believe that the property management company would not disclose the information to the Nelsons, who are also homeowners in the same association which retained the property manager. There is nothing in the emails or the arguments asserted in Breslow's memorandum which convinces me that Breslow's counsel had an expectation that his emails would not be shown to the Nelsons or discussed with them. There is nothing submitted to suggest that VMC's relationship with Breslow was somehow better than its relationship with any other homeowner, such as the Nelsons."; "In addition, the second factor -- the purpose of the disclosure (i.e., to help Breslow herself or to assist the community association or the property management company it retained) -- militates against Breslow's position. There is nothing to establish that Breslow's counsel was seeking to assist the association, rather than his own client. In fact, his second email includes a request that the management company forward material to him."; finding that plaintiff did not have a common legal interest with the property manager; "In a final effort to avoid the production of these two emails, Breslow argues that she has a 'common interest' with VMC, the property manager. But this is merely attorney rhetoric. There is no affidavit from Breslow's counsel, nor is there any supporting affidavit or other supporting information from VMC itself."; "Under the 'common interest' exception to waiver, a party may share its work product with another party without waiving the right to assert the privilege when the parties have a shared interest in actual or potential litigation against a common adversary, and the nature of their common interest is legal, and not solely commercial.")

Case Date Jurisidction State Cite Checked
2016-02-19 Federal FL

Chapter: 47.502

Case Name: Breslow v. American Security Insurance Co., Case No. 14-62834-CIV-GOODMAN, 2016 U.S. Dist. LEXIS 21133 (S.D. Fla. Feb. 19, 2016)
(analyzing privilege protection in a first party insurance situation; finding the work product doctrine did not apply at a time plaintiff's lawyer sought a resolution of the dispute without resorting to litigation; "In the context of work product, the question is not, as in the case of the attorneyclient privilege, whether confidential communications are disclosed, but to whom the disclosure is made -- because the protection is designed to protect an attorney's mental processes from discovery by adverse parties."; "Work-product protection is waived when protected materials are disclosed in a way that 'substantially increases the opportunity for potential adversaries to obtain the information.'")

Case Date Jurisidction State Cite Checked
2016-02-19 Federal FL

Chapter: 47.502

Case Name: Lucas v. Gregg Appliances, Inc., Case No. 1:14-cv-70, 2014 U.S. Dist. LEXIS 168751 (S.D. Ohio Dec. 5, 2014)
("Plaintiff also argues that the fee agreement and progress invoices are protected by the attorney-client privilege and work product doctrine. 'In discovery disputes, a blanket assertion of privilege regarding attorney fee bills is typically not appropriate.'. . . Even if these documents contained information protected by the attorney-client privilege, Plaintiff waived this privilege by forwarding them to Hoerst. However, this does not result in a waiver of the work product doctrine because Hoerst is not an adversary.")

Case Date Jurisidction State Cite Checked
2014-12-05 Federal OH

Chapter: 47.502

Case Name: Community Assoc. Underwriters of America, Inc. v. Queensboro Flooring Corp., Civ. A. No. 3:10-CV-1559, 2014 U.S. Dist. LEXIS 115847 (M.D. Pa. Aug. 20, 2014)
("Waiver of the work-product doctrine also works differently than waiver of the attorney-client privilege. Unlike the attorney-client privilege, where disclosure to a third party waives the privilege unless the disclosure is necessary to further the legal representation, 'the work-product-doctrine serves instead to protect an attorney's work-product from falling into the hands of an adversary,' and thus 'disclosure must enable an adversary to gain access to the information' for it to constitute waiver of work-product protection.")

Case Date Jurisidction State Cite Checked
2014-08-20 Federal PA

Chapter: 47.502

Case Name: Leprino Foods Co. v. DCI, Inc., Civil Action No. 13BcvB02430BRMBKMT, 2014 U.S. Dist. LEXIS 87822, at *22 (D. Colo. June 27, 2014)
("Because the work-product privilege looks to the 'vitality of the adversary system,' rather than simply seeking to preserve confidentiality, it is not automatically waived by disclosure.")

Case Date Jurisidction State Cite Checked
2014-06-27 Federal CO

Chapter: 47.502

Case Name: In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (GBD) (FM), 2013 U.S. Dist. LEXIS 84028, at *130 (S.D.N.Y. June 12, 2013)
August 28, 2013 (PRIVILEGE POINT)

"Court Handling the September 11 Terrorist Attack Case Addresses Work Product Waiver"

One dramatic difference between the work product doctrine and the attorney-client privilege involves the former's more robust protection -- which normally survives disclosure to friendly third parties. Numerous cases hold that disclosure to accountants, investment bankers, consultants, family members, etc. normally waives privilege protection -- but not work product protection.

However, even disclosure to a friendly third party can sometimes waive work product protection – if the disclosure increases the likelihood that an adversary can obtain it. In In re Terrorist Attacks on September 11, 2001, the court acknowledged that plaintiffs' FOIA requests were "clearly" work product, because plaintiffs and their lawyers prepared them in connection with the litigation. No. 03 MDL 1570 (GBD) (FM), 2013 U.S. Dist. LEXIS 84028, at *130 (S.D.N.Y. June 12, 2013). Plaintiffs also argued that "their sharing of work product information with various government agencies should not lead to any waiver because the government is not their adversary in this or any related proceeding." Id. At *131. The court nevertheless found a waiver – noting that defendants could themselves file FOIA requests, and that "even disclosure to non-adversaries waives work product protection if it materially increases the likelihood that an adversary can gain access to that information." Id.

Although most work product waiver cases involve disclosure to adversaries, even disclosure to non-adversaries can trigger a waiver in certain circumstances.

Case Date Jurisidction State Cite Checked
2013-06-12 Federal NY
Comment:

key case


Chapter: 47.502

Case Name: Zimmerman v. Florida, 114 So. 3d 446, 448 (Fla. Dist. Ct. App. 2013)
(analyzing privilege issues relating to taped interviews of a witness undertaken by a lawyer for the Treyvon Martin family; "[W]e also conclude that any testimony given by Crump [Treyvon Martin family's attorney] as to the substance of his interview of Witness 8 and the surrounding circumstances thereto would not violate the work product privilege because any privilege that may have existed was waived when Crump conducted the interview in the presence of two media representatives who subsequently aired portions of the interview on national television.")

Case Date Jurisidction State Cite Checked
2013-01-01 State FL B 4/14

Chapter: 47.503

Case Name: Bousamra v. Excela Health, No. 1637 WDA 2015, 2017 Pa. Super. LEXIS 543 (Pa. Super. July 19, 2017)
(finding that a public relations consultant was outside privilege and work product protection, and was not the functional equivalent of an employee; "Excela's position on appeal is straightforward: the work product privilege cannot be waived when work product is disseminated to a third party or witness as such disclosures are often needed to enable the attorney to prepare for litigation and since work product distributions to witnesses and third parties are not inconsistent with the purpose of the work product doctrine. Excela maintains that the work product privilege can be waived only when distributed to an adversary or under circumstances where there is a substantial increase in a potential adversary's opportunities to obtain the information."; "However, the principles invoked by Excela are not relevant herein. Outside counsel, the lawyer, did not use the email to aid him/her in preparing for litigation by disclosing its contents to a third party or witness. Outside counsel would not have waived his privilege in his own work product if he had given it to Jarrard [public relations consultant] to aid outside counsel in preparing this case for trial. That did not occur in this case. The client sent the email, and the email was not sent by Excela to Jarrard to help outside counsel in preparing a case for trial.")

Case Date Jurisidction State Cite Checked
2017-07-19 State PA

Chapter: 47.503

Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232-APG-GWF, 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
(holding that defendant Tropicana waived its privilege protection but not its work product protection by sharing due diligence material in an ongoing litigation to its ultimate acquirer; noting that plaintiff RKF sued Tropicana in 2014, and that Penn Gaming acquired Tropicana in 2015; creating a privilege waiver; "The protection of the work-product doctrine is not waived if the disclosing party has a reasonable basis to believe that the recipient will keep the disclosed materials confidential and not reveal them to the disclosing party's adversary. . . . If the disclosure is made under a written guarantee of confidentiality, then the case against waiver is even stronger. . . . The absence of a written agreement, however, does not require a finding of waiver. So long as the parties exchanging information do not act in a manner that is inconsistent with the doctrine's purpose, the work product privilege will be preserved."; "Penn Gaming had an interest at the time it received the information in preserving its confidentiality because it would, directly or indirectly, assume Tropicana's potential liability if the merger went through. Post-merger, Penn Gaming had even more incentive to preserve the confidentiality of the information. There is no evidence that Penn Gaming disclosed the information to any other persons either before or after the merger. Therefore, Tropicana did not waive its work product protection by providing information about the litigation to Penn Gaming prior to the August 2015 merger."; "Other courts have held that reserves set by the insurer in a first party insurance claim are irrelevant."; "Reserve information is relevant in an insurance bad faith lawsuit because the insurer has the contractual duty to defend and indemnify its insured, which also encompasses the duty to reasonably evaluate and settle claims within the policy's coverage. No similar duty exists in this case. Any amount that Tropicana set aside for accounting or business purposes to cover a possible award against it is irrelevant to proving its liability or the amount of RKF's damages. In this regard, settlement offers are inadmissible to prove the validity or amount of a disputed claim. Fed.R.Evid. 408(a). If actual settlement offers are inadmissible, then on what basis is a reserve admissible? Outside the insurance bad faith context, the Court perceives none. In any event, the reserves set by Tropicana are protected work product information for which RKF has not demonstrated a substantial need."; "Tropicana and Penn Gaming had a common business or commercial interest with respect to sharing information about the litigation, and the sharing of such information did not reasonably increase the risk that the documents would be disclosed to RKF.")

Case Date Jurisidction State Cite Checked
2017-05-25 Federal NV
Comment:

key case


Chapter: 47.503

Case Name: Endeavor Energy Resources, L.P. v. Gatto & Reitz, LLC, 2:13cv542, 2017 U.S. Dist. LEXIS 48715 (W.D. Pa. March 31, 2017)
("Endeavor is correct that disclosing work product to a third party – Estill -- is not dispositive as to whether the doctrine applies. . . . '[A] party may continue to assert the protections of the work[-]product doctrine only when the disclosure to a third party furthers the doctrine's underlying goal.'")

Case Date Jurisidction State Cite Checked
2017-03-31 Federal PA

Chapter: 47.503

Case Name: Cave Consulting Group, Inc. v. OptumInsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 179966 (N.D. Cal. Dec. 29, 2016)
(holding that a merged company faced the consequences of its predecessor's waiver of privilege; "The parties agree that waiver of the attorney-client privilege does not necessarily waive the separate protection of the work product doctrine.")

Case Date Jurisidction State Cite Checked
2016-12-29 Federal CA

Chapter: 47.503

Case Name: Cave Consulting Group, Inc. v. OptumInsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 179966 (N.D. Cal. Dec. 29, 2016)
("Because the attorney client privilege and the work product doctrine are distinct theories of protection with different purposes, waiver of one does not necessarily waive the other.")

Case Date Jurisidction State Cite Checked
2016-12-29 Federal CA

Chapter: 47.503

Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114 (E.D.N.Y. Sept. 18, 2015)
("As to work product, the test for whether waiver has occurred 'is whether the disclosure at issue has 'substantially increased the opportunities for potential adversaries to obtain the information.'")

Case Date Jurisidction State Cite Checked
2015-09-18 Federal NY

Chapter: 47.503

Case Name: Obeid v. La Mack, 14 cv. 6498 (LTS) (MHD), 2015 U.S. Dist. LEXIS 127327 (S.D.N.Y. Sept. 16, 2015)
("Waiver of work-product immunity is less readily recognized than waiver of the attorney-client privilege. Work-product waiver will generally be found if the party has disclosed the work product to its adversary, although disclosure to certain adversaries will not always require waiver vis-à-vis others. . . . As a corollary, the courts have found a waiver of work-product protection based on a party's disclosure to a non-adversary if the disclosure is done in circumstances that make it likely that the material will be revealed to an adversary. See, e.g., id. (citing cases). In contrast, 'disclosure simply to another person who has an interest in the information but who is not reasonably viewed as a conduit to a potential adversary will not be deemed a waiver.").

Case Date Jurisidction State Cite Checked
2015-09-16 Federal NY

Chapter: 47.503

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("The court finds that Plaintiffs did not waive work-product protection over the communications at issue merely by disclosing them to Janick, a non-adverse third party. What constitutes waiver with respect to work-product materials depends upon the circumstances. . . . In this case, the nature of the disclosure is not commensurate with the types of disclosure courts have found result in waiver. . . . There was no intention or reasonable probability that providing documents to Janick would somehow result in disclosure to Defendants. Although the evidence may be insufficient to demonstrate that Janick had an agency relationship with Plaintiffs, there is no evidence that he had an adversarial relationship with the Band at the time of disclosure. And the mere fact that Janick's email data might have been hosted on servers owned by third parties is insufficient to constitute waiver.")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal IL

Chapter: 47.503

Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *57, *58, *62-63, *65, *71, *71-72, *73, *73-74, *74, *75 (N.D. Ill. Jan. 6, 2014)
(analyzing the waiver effect of a company disclosing work product-protected documents to a litigation funding company; concluding that (1) the litigation funding arrangement was not unlawful champerty or maintenance; (2) the arrangement between the company and the litigation funding company was not relevant and therefore was not discoverable; (3) the company's estimate of its chance of success was not admissible because it was opinion work product; (4) the company waived privilege protection for any documents shared with a litigation funding company, because they did not share a common legal interest; and (5) the company waived work product protection by disclosing its work product to prospective funders with which the company did not have a confidentiality agreement; "While disclosure of a document to a third party waives attorney-client privilege unless the disclosure is necessary to further the goal of enabling the client to seek informed legal assistance, the same is not necessarily true of documents protected by the work product doctrine. This disparity in treatment flows from the very different goals the privileges are designed to effectuate. The attorney-client privilege promotes the attorney-client relationship, and, indirectly, the functioning of our legal system, by protecting the confidentiality of communications between clients and their attorneys. . . . In contrast, the work-product doctrine promotes the adversary system directly by protecting the confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation."; "Because the work-product doctrine serves to protect an attorney's work product from falling into the hands of an adversary, a disclosure to a third party does not automatically waive work-product protection."; "To avoid the risk of disclosure, Miller took precautions through confidentiality agreements with at least some prospective funders."; "In contrast to the attorney-client privilege, the party asserting work product immunity is not required to prove non-waiver. The party asserting waiver has the burden to show that a waiver occurred."; "It is a relevant inquiry in cases like this whether the disclosing party had a reasonable basis for believing that the recipient would keep the disclosed material confidential. . . . While a confidentiality agreement may provide that basis, its absence may not be fatal to a finding of non-waiver. Phrased differently, a confidentiality agreement may be a sufficient but not a necessary element of a finding of non-waiver in cases like this. With or without a confidentiality agreement, it could be argued that a prospective funder would hardly advance his business interests by gratuitously informing an applicant's adversary in litigation about funding inquiries from that company. To do so would announce to future litigants looking for funding this was a company not to be trusted." (footnote omitted); "[W]here Miller had an oral or written confidentiality agreement, they remain protected and are not discoverable. But what about those funders with which Miller had no agreement? All Miller has said is that the turnovers to funders did not increase the chances that Caterpillar would get the information."; "[O]n the present record, it appears that Miller took protective measure with some but perhaps not all prospective funders. On the present record and given the absence of any developed legal argument from Miller, Caterpillar has sufficiently shown that as to the latter group of funders a turnover of information substantially increased the risk of disclosure to Caterpillar and resulted in a waiver of the work product privilege. Miller must produce all damage summaries, damage estimates and spread sheets."; "There is a final aspect of the materials I reviewed in camera that warrants separate mention. Miller has redacted on a funding application a percentage estimate of the chances of success in the case. The percentage estimate, which it bears repeating is quite high, is unexplained. It is simply a number. The identical, unexplained, percentage estimate appears in a number of other documents -- many are duplicates -- that Miller has listed on its revised Privilege Log."; "A numerical estimate of the chances of success, even if unexplained, would appear to fall within that portion of Rule 26(b)(3)(B) that covers materials containing 'the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.'"; "Miller, quite obviously, could not use its own estimate at trial since it would be irrelevant and run afoul of the hearsay rule. And given the rosy estimate, Caterpillar would never try to use it as an admission. But even if it did, it would never be admitted: the lawyers certainly could not testify about the basis for the estimate. In fact, that would be error."; "In sum, even if Caterpillar were foolhardy enough to seek admission of Miller's high estimate of its chances of success on the theory that the estimate was an admission, it would inevitably be excluded under Rule 403. . . . Hence, any unexplained, percentage estimate of the chances of success made by Miller to a prospective funder need not be produced.")

Case Date Jurisidction State Cite Checked
2014-01-06 Federal IL B 6/14

Chapter: 47.503

Case Name: Larson v. One Beacon Ins. Co., Civ. A. No. 12-cv-03150-MSK-KLM, 2013 U.S. Dist. LEXIS 81181, at *22 (D. Colo. June 10, 2013)
("[I]t is less likely that work-product protection has been waived by disclosure to others than that the attorney-client privilege has been waived under the same circumstances.")

Case Date Jurisidction State Cite Checked
2013-06-10 Federal CO B 4/14

Chapter: 47.503

Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *120, *128 (D. Minn. June 4, 2013)
("Wells Fargo did not waive its privilege through disclosure [to accounting firm KPMG] because (1) Eighth Circuit law requires that a party intend for its adversary to see the work product in order to waive the privilege; (2) KPMG is not an adversary; (3) Wells Fargo did not intend for an adversary to see its work product; and (4) Wells Fargo did not intend for a conduit to an adversary to see its work product."; "[T]here is no evidence to establish that KPMG was a conduit to an adversary. The United States has presented no evidence about how often auditors in general make disclosures to the SEC or other entities. Furthermore, the United States presented no evidence that KPMG in particular had ever made disclosures to adversaries. The evidence thus shows nothing more than a remote possibility of disclosure, which is insufficient to deem a party a conduit to an adversary.")

Case Date Jurisidction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 47.503

Case Name: Werder v. Marriott Int'l, Inc., No. 2:10cv1656, 2012 U.S. Dist. LEXIS 134719, at *5 (W.D. Pa. Sept. 20, 2012)
("This work-product protection can be waived should a party disclose pertinent information to an adversary or third party. A disclosure to a third party does not necessarily waive the privilege.")

Case Date Jurisidction State Cite Checked
2012-09-20 Federal PA B 10/13

Chapter: 47.503

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *12-13 (E.D. Va. April 13, 2010)
("Waiver may occur through the disclosing party's 'testimonial use' (id.) of the privileged material. Testimonial use includes not only use of the material at trial or deposition, but has also been construed to include disclosure to a governmental entity that was in a position adverse to the disclosing party at the time of the disclosure. See In re Martin Marietta Corp., 856 F.2d 619, 625 (4th Cir. 1988) (finding 'that disclosure . . . to the federal government, the United States Attorney and the DOD, when the government and [the discloser] were adversaries constitutes testimonial use' that waived the privilege). But, when privileged material is shared with a third party who is an ally of the discloser, one who has 'common interests' with the disclosing party, such disclosure is not considered 'testimonial,' and does not waive the work product privilege. See, e.g., In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981) ('Disclosure to a person with an interest common to that of the attorney or the client normally is not inconsistent with an intent to invoke the work product doctrine's protection and would not amount to such a waiver.'); see also United States v. AT&T, 642 F.2d 1285, 1299, 206 U.S. App. D.C. 317 (D.C. Cir. 1980) (finding common interests between the government and a competitor of AT&T, each of whom were separately prosecuting antitrust claims).")

Case Date Jurisidction State Cite Checked
2010-04-13 Federal VA

Chapter: 47.503

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 269 (E.D. Va. 2006)
(assessing the privilege and work product protection for a letter that a City Attorney sent to the City Council, the City Manager and other officials; finding that the letter was privileged, but that the City had waived the privilege because: the City Attorney sent the letter in an envelope that was not marked confidential or sealed; the City Attorney might have faxed the letter to a City Council Member's home where his family could have intercepted it; the City did not have a training program or guidelines on the handling and disposal of privileged documents; neither the City Attorney nor any of the recipients objected when one of the City Council Members revealed some of the letter's content at a City Council Meeting; nevertheless finding that the letter also deserved work product protection, which had not been waived; "Unlike the attorney-client privilege, disclosure of work product does not automatically waive the doctrine's protections. . . . Limited disclosure to third parties is insufficient to waive the work product privilege. . . . In order waive [sic] work product protection, the party must produce complete documents, . . . or attempt to make testimonial use of the work product. . . . Therefore, even though Whitehurst revealed some parts of the letter at the City Council meeting, these revelations are not enough to waive work product protection under Rule 26(b)(3).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal

Chapter: 47.503

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 269 (E.D. Va. 2006)
("Unlike the attorney-client privilege, disclosure of work product does not automatically waive the doctrine's protections. See United States v. Am. Tel. & Tel. Co., 206 U.S. App. D.C. 317, 642 F.2d 1285 (D.C. Cir. 1980). Limited disclosure to third parties is insufficient to waive the work product privilege. See Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1223 (4th Cir. 1976). In order waive work product protection, the party must produce complete documents, see id. at 1299, or attempt to make testimonial use of the work product, See United States v. Nobles, 422 U.S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975). Therefore, even though Whitehurst revealed some parts of the letter at the City Council meeting, these revelations are not enough to waive work product protection under Rule 26(b)(3).)

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 47.503

Case Name: Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *6-7 (W.D. Va. Nov. 8, 2005)
(analyzing the waiver implications of plaintiff sharing opinion work product with lawyers for the client's insurance agency and the lawyer for the estate of someone killed in a boat accident; "Limiting a waiver to only instances where disclosure is made to parties with actual adverse interests is premised upon the rationale that a party, making a disclosure knowingly and voluntarily to another who can act as conduit to an opponent, understands the increased risk that the document can be passed to his opponent and, thus, waives his privilege. Id. [In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981)]. . . . The disclosure in this case does not increase the possibility that defendant insurance company may obtain the information. Because plaintiff and his correspondents share a common interest in obtaining insurance coverage for the boating accident, there is no waiver here. A waiver does not occur when disclosure of opinion work-product is made to a third-party sharing a common interest in the subject matter of such disclosure, even though the parties may become adverse on other issues.")

Case Date Jurisidction State Cite Checked
2005-11-08 Federal VA

Chapter: 47.503

Case Name: Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *4 (W.D. Va. Nov. 8, 2005)
("The privilege may be deemed to have been waived when an attorney freely and voluntarily discloses the contents of otherwise protected work-product to someone with interests adverse to his or those of the client, knowingly increasing the possibility that an opponent will obtain and use the material.")

Case Date Jurisidction State Cite Checked
2005-11-08 Federal VA N 1/06

Chapter: 47.503

Case Name: Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *4-6 (W.D. Va. Nov. 8, 2005)
("Although the Fourth Circuit has not defined 'adverse interest' in the waiver context, the term is generally understood to mean 'an interest that is opposed or contrary to that of someone else.' See BLACK'S LAW DICTIONARY (8th ed. 2004). In the context of the instant coverage dispute, plaintiff's interest is not adverse to the parties to whom the correspondence was sent. Indeed, plaintiff and the third-parties with whom his counsel corresponded actually have a common interest in seeing that defendant insurance company provide coverage for the claim. When a disclosure is made to a third-party with a common interest, the work-product privilege is not waived. A 'common interest' should not be construed so narrowly as to only encompass co-parties. See United States v. American Telephone & Telegraph Co., 206 U.S. App. D.C. 317, 642 F.2d 1285, 1299 (D.C. Cir. 1980). So long as the transferor of the document and the transferee anticipate litigation against a common adversary on the same issue or issues, they have strong common interests in sharing the fruit of the trial preparation efforts. Id. Plaintiff was corresponding with the third-parties to obtain their cooperation in furtherance of their common interest. They shared a common interest in obtaining insurance coverage for the boating accident; thus, there was no waiver when plaintiff disclosed the documents at issue to them. Although defendant points out that plaintiff and the third-parties could potentially become adversaries if the litigation against defendant is unsuccessful, that is not the standard for determining whether the work-product privilege is waived. The Fourth Circuit has clearly held that for a waiver to occur, the disclosure must be made freely and with the knowledge that document is being passed to a party with adverse interests. See Doe, 662 F.2d at 1081. Certainly, that is not the case here as the recipients of the letters share a common interest in securing insurance coverage for the boat accident. While these parties may be adverse on other issues, that does not vitiate their common interest on the subject matters of the letters.")

Case Date Jurisidction State Cite Checked
2005-11-08 Federal VA

Chapter: 47.503

Case Name: Wells v. Liddy, 37 F. App'x 53, 66-67 (4th Cir. 2002)
("With regard to waiver of work-product, Liddy clearly made testimonial use of several privileged documents. The foremost example is the June 11, 1992 letter that Liddy's lawyers sent to counsel for St. Martin's Press providing a detailed analysis of investigation into the Silent Coup theory of the Watergate break-ins. At trial, Liddy testified that he had received a copy of this letter and relied on the information. This constituted testimonial use of the letter and any claim to a workproduct [sic] privilege was waived. Two other instances of testimonial use of work product occurred when Liddy was deposed. First, he stated that he learned of rumors regarding the dismissal of Oliver and Wells from his counsel. Second, the source for his knowledge of Wells dating Baldwin was also his counsel. For all these instances where Liddy made 'testimonial use' of work product, the privilege is waived and the rules of discovery and evidence are therefore applicable." (footnotes omitted))

Case Date Jurisidction State Cite Checked
2002-01-01 Federal

Chapter: 47.503

Case Name: Wells v. Liddy, 37 F. App'x 53, 65 (4th Cir. 2002)
("Unlike the attorney-client privilege, however, the work-product privilege is not waived by mere disclosure but instead by making 'testimonial use' of the protected material.")

Case Date Jurisidction State Cite Checked
2002-01-01 Federal

Chapter: 47.503

Case Name: Cluverius v. McGraw, 44 Va. Cir. 426, 430, 431 (Va. Cir. Ct. 1998)
(finding that three defendants with a common interest and a non-party to the litigation which shared that interest may exchange information "for the purposes of assisting in their defense" without waiving the work product doctrine protection; "[W]hile the mere showing of a voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client privilege, it should not suffice in itself for waiver of the work product privilege." (citing Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 76-77 (E.D. Va. 1998)))

Case Date Jurisidction State Cite Checked
1998-01-01 State VA

Chapter: 47.503

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 76 (E.D. Va. 1998)
("The law regarding third-party waiver of work product protection is completely different. The attorney-client privilege exists to encourage the client to communicate with his lawyer. Work product protection, on the other hand, exists to encourage an attorney to prepare effectively for litigation. It would be consistent with the purpose of the work product protection to encourage sharing of the material with anyone who could help the attorney prepare for trial. It would completely stand the work product doctrine on its head to allow discovery of an attorney's work product simply because that attorney shared it with someone who was helping him prepare for litigation."), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA

Chapter: 47.504

Case Name: Waymo LLC v. Uber Technologies, Inc., No. C 17-00939 WHA, 2017 U.S. Dist. LEXIS 96852 (N.D. Cal. June 21, 2017)
(holding that Uber waived any work product protection for the due diligence report it prepared in connection with its purchase of Ottomotto, because it shared the work product with Ottomotto and its founder; "Judge Corley found that Uber waived any work-product privilege it may have had over the contents of the due diligence report by disclosing it to then-adversaries Ottomotto, Levandowski, and Ron, and that no 'common interest' prevented such waiver . . . . Uber objects that it did not disclose the due diligence report to an adversary, as required for waiver of work-product privilege, because defendants, Levandowski, and Ron shared a 'common interest' in that they all 'knew they faced litigation risk from Waymo even prior to the signing of the Put Call Agreement on April 11, 2016,' and 'irrespective of whether the deal closed.'"; "Uber also cites non-binding decisions for the proposition that parties on opposite sides of a transaction are not 'adversaries' for purposes of work-product privilege waiver. Judge Corley considered and rejected this proposition.")

Case Date Jurisidction State Cite Checked
2017-06-21 Federal CA

Chapter: 47.504

Case Name: Thompson v. City of Oakwood, Ohio, Case No. 3:16-cv-169, 2017 U.S. Dist. LEXIS 49157 (S.D. Ohio March 31, 2017)
(holding that disclosing work product to a witness waived that protection, because a defendant could subpoena the documents; "Defendants seek the production of communications between Plaintiffs' counsel and Gayle Hites, a non-party witness."; "Here, Defendants made the communications at issue in a manner that enabled Defendants to obtain access to them, waiving the protection of the attorney work product doctrine. The communications were between Plaintiffs' counsel and Ms. Hites, a non-party witness. Plaintiffs have not argued -- nor could they -- that Ms. Hites is not subject to discovery."; "Defendants have subpoenaed Ms. Hites for deposition and the production of documents. They cannot obtain copies of the communications from Ms. Hites, however, because she is in the process of moving and, as represented by Plaintiffs' counsel, 'is not good with technology and does not know how to get the information off of her computer, etc.'"; "[B]ecause Ms. Hites does not have access to the communications, Defendants cannot obtain them from anyone other than Plaintiffs' counsel.")

Case Date Jurisidction State Cite Checked
2017-03-31 Federal OH
Comment:

key case


Chapter: 47.504

Case Name: Harrington v. Bergen Cty., A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727, at *11 (D.N.J. Sept. 13, 2016)
November 30, 2016 (PRIVILEGE POINT)

"Plaintiff's Live-In Boyfriend was Outside Privilege Protection, but Inside Work Product Protection: Part II"

Last week's Privilege Point described a court's acknowledgment that a mentally ill plaintiff's live-in boyfriend had provided "meaningful assistance" to the plaintiff in dealing with her lawyer, but was not "necessary or essential" for the plaintiff to obtain her lawyer's advice. Harrington v. Bergen Cty., A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727, at *11 (D.N.J. Sept. 13, 2016). This meant that communications in her boyfriend's presence were not privileged, and that any privileged communication later shared with her boyfriend lost privilege protection.

The court then turned to the work product analysis – and dealt with two related issues. First, the court correctly held that any work product that was "transmitted to or shared with" the boyfriend did not lose that separate protection. Id. at *15. As the court explained, "there is no indication of disclosure to adversaries," so work product protection remained. Id. Second, the court incorrectly held that "the work product doctrine does not protect documents, emails, or other items created by" the boyfriend – because "Plaintiff contends that [her boyfriend] served as her agent or representative, as opposed to" her lawyer's agent. Id. at *13, *15. It is impossible to square this conclusion with the work product rule itself – which on its face protects documents (motivated by litigation) created "'by or for another party or its representative.'" Id. at *7 (quoting Fed. R. Civ. P. 26(b)(3)(A)). The boyfriend's documents should have deserved work product protection either because (1) the documents were prepared "for" the plaintiff, or (2) "by" her "representative."

Lawyers and their clients should keep in mind the dramatic differences between the attorney-client privilege and the work product doctrine. In this case, the court correctly applied one privilege principle (under the majority approach) and one work product principle — but incorrectly applied another work product principle (which varied from the rule language itself). Perhaps the plaintiff can take solace in the words of Meatloaf's song: "Now don't be sad, cause two out of three ain't bad."

Case Date Jurisidction State Cite Checked
2016-09-13 Federal NJ
Comment:

key case


Chapter: 47.504

Case Name: IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, Dkt. No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223 (W.D. La. March 29, 2016)
("After examining the February 2, 2016 e-mail we find that it was prepared in preparation of litigation or trial, was written to provide legal assistance or advice, and contains legal impressions, strategies, or opinions. Thus, we conclude that it should be protected from disclosure. We also find that disclosure to the non-party Port Rail, Inc. does not waive the protection afforded the email. Port Rail, Inc. is not an 'adversary or a conduit to an adversary' with respect to the Port.")

Case Date Jurisidction State Cite Checked
2016-03-29 Federal LA

Chapter: 47.504

Case Name: Breslow v. American Security Insurance Co., Case No. 14-62834-CIV-GOODMAN, 2016 U.S. Dist. LEXIS 21133 (S.D. Fla. Feb. 19, 2016)
(analyzing privilege protection in a first party insurance situation; finding the work product doctrine did not apply at a time plaintiff's lawyer sought a resolution of the dispute without resorting to litigation; "In the context of work product, the question is not, as in the case of the attorneyclient privilege, whether confidential communications are disclosed, but to whom the disclosure is made -- because the protection is designed to protect an attorney's mental processes from discovery by adverse parties."; "Work-product protection is waived when protected materials are disclosed in a way that 'substantially increases the opportunity for potential adversaries to obtain the information.'")

Case Date Jurisidction State Cite Checked
2016-02-19 Federal FL

Chapter: 47.504

Case Name: Brown v. NCL (Bahamas), Ltd., Case No. 15-21732-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 165346 (S.D. Fla. Dec. 9, 2015)
(analyzing work product issues in connection with a post-accident investigation of an assault on a cruise ship; presenting the factual scenario and finding work product protection for the alleged assailant's interview; finding that the cruise line did not waive work product protection covering the alleged assailant's interview statement to the port police; "In the context of work product, the question is not, as in the case of the attorney client privilege, whether confidential communications are disclosed, but to whom the disclosure is made -- because the protection is designed to protect an attorney's mental processes from discovery by adverse parties.")

Case Date Jurisidction State Cite Checked
2015-12-09 Federal FL
Comment:

key case


Chapter: 47.504

Case Name: United States v. Veolia Environment N.A. Operations, Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 15417 (D. Del. Oct. 31, 2014)
("[T]he Court finds no waiver of privilege because PWC is not an adversary nor a conduit to an adversary. On the contrary, PWC was regularly consulted as a non-testifying expert.")

Case Date Jurisidction State Cite Checked
2014-10-31 Federal DE

Chapter: 47.504

Case Name: Szulik v. State Street Bank and Trust Co., Civ. A. No. 12-10018-NMG, 2014 U.S. Dist. LEXIS 110447 (D. Mass. Aug. 11, 2014)
("[I]n light of the protective order entered into by the parties, the fact that State Street produced another copy of the email chain does not constitute a waiver of any privilege. The protective order allows a party to claw back a document regardless of whether its production was negligent or intentional. Further, 'work product protection is waived only when documents are used in a manner contrary to the doctrine's purpose, when disclosure substantially increases the opportunity for potential adversaries to obtain the information.'. . . Here, the disclosure was made only to the Szuliks in the context of litigation, and there was a prompt claw back request. This did not rise to the level of waiver. Such a disclosure did not take place here.")

Case Date Jurisidction State Cite Checked
2014-08-11 Federal MA

Chapter: 47.504

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("The court finds that Plaintiffs did not waive work-product protection over the communications at issue merely by disclosing them to Janick, a non-adverse third party. What constitutes waiver with respect to work-product materials depends upon the circumstances. . . . In this case, the nature of the disclosure is not commensurate with the types of disclosure courts have found result in waiver. . . . There was no intention or reasonable probability that providing documents to Janick would somehow result in disclosure to Defendants. Although the evidence may be insufficient to demonstrate that Janick had an agency relationship with Plaintiffs, there is no evidence that he had an adversarial relationship with the Band at the time of disclosure. And the mere fact that Janick's email data might have been hosted on servers owned by third parties is insufficient to constitute waiver.")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal IL

Chapter: 47.504

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("Work-product protection may be waived where the communications are disclosed in a manner which substantially increases the opportunity for potential adversaries to obtain the information.")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal IL

Chapter: 47.504

Case Name: Skynet Elec. Co., Ltd. v. Flextronics Int'l, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372, at *10, *10-11, *12 (N.D. Cal. Dec. 16, 2013)
(discussing the different waiver standards for privilege and work product protection; finding that disclosure to a Taiwanese "patent attorney" did not waive work product protection, although those "patent attorneys" were not actually lawyers; "Here, disclosure of the work product to Yan [Taiwanese patent attorney] did not make it substantially more likely that defendants would discover it. In fact, plaintiff cites extensive statutory authority for the proposition that Taiwanese patent agents are bound by law from disclosing their clients' confidential work product. For example, patent agents may 'refuse to testify, divulge confidences and produce documents.'" (internal citation omitted); "[A]lthough our court of appeals had not directly addressed this issue, the great weight of authority holds that disclosure of work product to individuals who share a common interest with the disclosing party does not constitute waiver."; "In agreement with the above stated authority, this order holds that the disclosure of work-product materials to Gwo-Jye Yan was not sufficient to waive work-product immunity.")

Case Date Jurisidction State Cite Checked
2013-12-16 Federal CA B 5/14

Chapter: 47.504

Case Name: In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (GBD) (FM), 2013 U.S. Dist. LEXIS 84028, at *130 (S.D.N.Y. June 12, 2013)
August 28, 2013 (PRIVILEGE POINT)

"Court Handling the September 11 Terrorist Attack Case Addresses Work Product Waiver"

One dramatic difference between the work product doctrine and the attorney-client privilege involves the former's more robust protection -- which normally survives disclosure to friendly third parties. Numerous cases hold that disclosure to accountants, investment bankers, consultants, family members, etc. normally waives privilege protection -- but not work product protection.

However, even disclosure to a friendly third party can sometimes waive work product protection – if the disclosure increases the likelihood that an adversary can obtain it. In In re Terrorist Attacks on September 11, 2001, the court acknowledged that plaintiffs' FOIA requests were "clearly" work product, because plaintiffs and their lawyers prepared them in connection with the litigation. No. 03 MDL 1570 (GBD) (FM), 2013 U.S. Dist. LEXIS 84028, at *130 (S.D.N.Y. June 12, 2013). Plaintiffs also argued that "their sharing of work product information with various government agencies should not lead to any waiver because the government is not their adversary in this or any related proceeding." Id. At *131. The court nevertheless found a waiver – noting that defendants could themselves file FOIA requests, and that "even disclosure to non-adversaries waives work product protection if it materially increases the likelihood that an adversary can gain access to that information." Id.

Although most work product waiver cases involve disclosure to adversaries, even disclosure to non-adversaries can trigger a waiver in certain circumstances.

Case Date Jurisidction State Cite Checked
2013-06-12 Federal NY
Comment:

key case


Chapter: 47.504

Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 40 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "Nothing in the record suggests that the disclosure of information to Waldman [plaintiff's FDA consultant] increased the likelihood that privileged documents would fall into the hands of Bryan's potential adversaries. The evidence shows that Waldman has served as Bryan's agent on FDA matters for more than a decade, and was working as Bryan's exclusive agent with respect to the dispute with ChemWerth at the time the documents were exchanged.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal MA B 5/14

Chapter: 47.504

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 329 (M.D. Pa. 2013)
("Waiver of the work-product doctrine also works differently than waiver of the attorney-client privilege. Unlike the attorney-client privilege, where disclosure to a third party waives the privilege unless the disclosure is necessary to further the legal representation, 'the work product-doctrine serves instead to protect an attorney's work product from falling into the hands of an adversary,' and thus 'disclosure must enable an adversary to gain access to the information' for it to constitute waiver of work-product protection." (citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 47.504

Case Name: Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *6-7 (W.D. Va. Nov. 8, 2005)
(analyzing the waiver implications of plaintiff sharing opinion work product with lawyers for the client's insurance agency and the lawyer for the estate of someone killed in a boat accident; "Limiting a waiver to only instances where disclosure is made to parties with actual adverse interests is premised upon the rationale that a party, making a disclosure knowingly and voluntarily to another who can act as conduit to an opponent, understands the increased risk that the document can be passed to his opponent and, thus, waives his privilege. Id. [In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981)]. . . . The disclosure in this case does not increase the possibility that defendant insurance company may obtain the information. Because plaintiff and his correspondents share a common interest in obtaining insurance coverage for the boating accident, there is no waiver here. A waiver does not occur when disclosure of opinion work-product is made to a third-party sharing a common interest in the subject matter of such disclosure, even though the parties may become adverse on other issues.")

Case Date Jurisidction State Cite Checked
2005-11-08 Federal VA

Chapter: 47.504

Case Name: Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *4-6 (W.D. Va. Nov. 8, 2005)
("Although the Fourth Circuit has not defined 'adverse interest' in the waiver context, the term is generally understood to mean 'an interest that is opposed or contrary to that of someone else.' See BLACK'S LAW DICTIONARY (8th ed. 2004). In the context of the instant coverage dispute, plaintiff's interest is not adverse to the parties to whom the correspondence was sent. Indeed, plaintiff and the third-parties with whom his counsel corresponded actually have a common interest in seeing that defendant insurance company provide coverage for the claim. When a disclosure is made to a third-party with a common interest, the work-product privilege is not waived. A 'common interest' should not be construed so narrowly as to only encompass co-parties. See United States v. American Telephone & Telegraph Co., 206 U.S. App. D.C. 317, 642 F.2d 1285, 1299 (D.C. Cir. 1980). So long as the transferor of the document and the transferee anticipate litigation against a common adversary on the same issue or issues, they have strong common interests in sharing the fruit of the trial preparation efforts. Id. Plaintiff was corresponding with the third-parties to obtain their cooperation in furtherance of their common interest. They shared a common interest in obtaining insurance coverage for the boating accident; thus, there was no waiver when plaintiff disclosed the documents at issue to them. Although defendant points out that plaintiff and the third-parties could potentially become adversaries if the litigation against defendant is unsuccessful, that is not the standard for determining whether the work-product privilege is waived. The Fourth Circuit has clearly held that for a waiver to occur, the disclosure must be made freely and with the knowledge that document is being passed to a party with adverse interests. See Doe, 662 F.2d at 1081. Certainly, that is not the case here as the recipients of the letters share a common interest in securing insurance coverage for the boat accident. While these parties may be adverse on other issues, that does not vitiate their common interest on the subject matters of the letters.")

Case Date Jurisidction State Cite Checked
2005-11-08 Federal VA

Chapter: 47.504

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 76 (E.D. Va. 1998)
("The law regarding third-party waiver of work product protection is completely different. The attorney-client privilege exists to encourage the client to communicate with his lawyer. Work product protection, on the other hand, exists to encourage an attorney to prepare effectively for litigation. It would be consistent with the purpose of the work product protection to encourage sharing of the material with anyone who could help the attorney prepare for trial. It would completely stand the work product doctrine on its head to allow discovery of an attorney's work product simply because that attorney shared it with someone who was helping him prepare for litigation."), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA

Chapter: 47.504

Case Name: Cluverius v. McGraw, 44 Va. Cir. 426, 430, 431 (Va. Cir. Ct. 1998)
(finding that three defendants with a common interest and a non-party to the litigation which shared that interest may exchange information "for the purposes of assisting in their defense" without waiving the work product doctrine protection; "[W]hile the mere showing of a voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client privilege, it should not suffice in itself for waiver of the work product privilege." (citing Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 76-77 (E.D. Va. 1998)))

Case Date Jurisidction State Cite Checked
1998-01-01 State VA

Chapter: 47.505

Case Name: U.S. Equal Employment Opportunity Comm. v. Pioneer Hotel, Inc., Case No. 2:11-cv-01588-LRH-GWF, 2014 U.S. Dist. LEXIS 142735 (D. Nev. Oct. 6, 2014)
(finding that the EEOC's solicitation letters to a company's employees met part of the work product doctrine standard, but did not amount to opinion work product, and had not taken steps to keep the solicitation letters out of the company's hands; "The EEOC has sufficiently shown that 'the letter sent to employees of Defendant's Housekeeping Unit to Call re: Entitlement to Monetary Relief' was sent in anticipation of litigation and therefore is within the scope of the work-product doctrine. The EEOC has not made any showing, however, that the solicitation letter contains the mental impressions or theories of the EEOC's lawyers about the case such that it should be considered 'opinion work product.' The EEOC has also not shown that it made efforts to distribute the letter in such a manner that it was not reasonably likely that copies of the letter would be provided to Defendant. . . . Defendant's counsel represented at the hearing that Defendant was provided with one of the letters by an employee who received it.")

Case Date Jurisidction State Cite Checked
2014-10-06 Federal NV

Chapter: 47.505

Case Name: In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (GBD) (FM), 2013 U.S. Dist. LEXIS 84028, at *130 (S.D.N.Y. June 12, 2013)
August 28, 2013 (PRIVILEGE POINT)

"Court Handling the September 11 Terrorist Attack Case Addresses Work Product Waiver"

One dramatic difference between the work product doctrine and the attorney-client privilege involves the former's more robust protection -- which normally survives disclosure to friendly third parties. Numerous cases hold that disclosure to accountants, investment bankers, consultants, family members, etc. normally waives privilege protection -- but not work product protection.

However, even disclosure to a friendly third party can sometimes waive work product protection – if the disclosure increases the likelihood that an adversary can obtain it. In In re Terrorist Attacks on September 11, 2001, the court acknowledged that plaintiffs' FOIA requests were "clearly" work product, because plaintiffs and their lawyers prepared them in connection with the litigation. No. 03 MDL 1570 (GBD) (FM), 2013 U.S. Dist. LEXIS 84028, at *130 (S.D.N.Y. June 12, 2013). Plaintiffs also argued that "their sharing of work product information with various government agencies should not lead to any waiver because the government is not their adversary in this or any related proceeding." Id. At *131. The court nevertheless found a waiver – noting that defendants could themselves file FOIA requests, and that "even disclosure to non-adversaries waives work product protection if it materially increases the likelihood that an adversary can gain access to that information." Id.

Although most work product waiver cases involve disclosure to adversaries, even disclosure to non-adversaries can trigger a waiver in certain circumstances.

Case Date Jurisidction State Cite Checked
2013-06-12 Federal NY
Comment:

key case


Chapter: 47.505

Case Name: Larson v. One Beacon Ins. Co., Civ. A. No. 12-cv-03150-MSK-KLM, 2013 U.S. Dist. LEXIS 81181, at *24 (D. Colo. June 10, 2013)
("There is no indication that Ms. Tester was adverse to Defendant or that any party anticipated further litigation until informed by Plaintiff that he would pursue a lawsuit against Defendant based on an alleged breach of the insurance contract. The opponents of these individuals and entities in the underlying litigation were the plaintiffs in the malpractice suit. Ms. Tester clearly aligned herself with Defendant in the underlying litigation and did not anticipate the relationship becoming adversarial. Thus, the Court finds that disclosure of work product among Ms. Tester, Mr. Thomas, Defendant, and WEMED [defendant's law firm] did not constitute waiver regarding third parties.")

Case Date Jurisidction State Cite Checked
2013-06-10 Federal CO B 4/14

Chapter: 47.505

Case Name: Costello v. Poisella, 291 F.R.D. 224, 233 (N.D. Ill. 2013)
(finding that a common interest participant could not unilaterally waive privilege protection for communications involving the common interest participants; "A trickier question is whether the work product privilege was waived in 2007. By that time, any common interest had dissolved. Comdisco had settled its dispute with Bank One, and Comdisco's bankruptcy trustee had filed this suit against the Defendants.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 47.506

Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232-APG-GWF, 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
(holding that defendant Tropicana waived its privilege protection but not its work product protection by sharing due diligence material in an ongoing litigation to its ultimate acquirer; noting that plaintiff RKF sued Tropicana in 2014, and that Penn Gaming acquired Tropicana in 2015; creating a privilege waiver; "The protection of the work-product doctrine is not waived if the disclosing party has a reasonable basis to believe that the recipient will keep the disclosed materials confidential and not reveal them to the disclosing party's adversary. . . . If the disclosure is made under a written guarantee of confidentiality, then the case against waiver is even stronger. . . . The absence of a written agreement, however, does not require a finding of waiver. So long as the parties exchanging information do not act in a manner that is inconsistent with the doctrine's purpose, the work product privilege will be preserved."; "Penn Gaming had an interest at the time it received the information in preserving its confidentiality because it would, directly or indirectly, assume Tropicana's potential liability if the merger went through. Post-merger, Penn Gaming had even more incentive to preserve the confidentiality of the information. There is no evidence that Penn Gaming disclosed the information to any other persons either before or after the merger. Therefore, Tropicana did not waive its work product protection by providing information about the litigation to Penn Gaming prior to the August 2015 merger."; "Other courts have held that reserves set by the insurer in a first party insurance claim are irrelevant."; "Reserve information is relevant in an insurance bad faith lawsuit because the insurer has the contractual duty to defend and indemnify its insured, which also encompasses the duty to reasonably evaluate and settle claims within the policy's coverage. No similar duty exists in this case. Any amount that Tropicana set aside for accounting or business purposes to cover a possible award against it is irrelevant to proving its liability or the amount of RKF's damages. In this regard, settlement offers are inadmissible to prove the validity or amount of a disputed claim. Fed.R.Evid. 408(a). If actual settlement offers are inadmissible, then on what basis is a reserve admissible? Outside the insurance bad faith context, the Court perceives none. In any event, the reserves set by Tropicana are protected work product information for which RKF has not demonstrated a substantial need."; "Tropicana and Penn Gaming had a common business or commercial interest with respect to sharing information about the litigation, and the sharing of such information did not reasonably increase the risk that the documents would be disclosed to RKF.")

Case Date Jurisidction State Cite Checked
2017-05-25 Federal NV
Comment:

key case


Chapter: 47.506

Case Name: Thompson v. City of Oakwood, Ohio, Case No. 3:16-cv-169, 2017 U.S. Dist. LEXIS 49157 (S.D. Ohio March 31, 2017)
(holding that disclosing work product to a witness waived that protection, because a defendant could subpoena the documents; "Defendants seek the production of communications between Plaintiffs' counsel and Gayle Hites, a non-party witness."; "Here, Defendants made the communications at issue in a manner that enabled Defendants to obtain access to them, waiving the protection of the attorney work product doctrine. The communications were between Plaintiffs' counsel and Ms. Hites, a non-party witness. Plaintiffs have not argued -- nor could they -- that Ms. Hites is not subject to discovery."; "Defendants have subpoenaed Ms. Hites for deposition and the production of documents. They cannot obtain copies of the communications from Ms. Hites, however, because she is in the process of moving and, as represented by Plaintiffs' counsel, 'is not good with technology and does not know how to get the information off of her computer, etc.'"; "[B]ecause Ms. Hites does not have access to the communications, Defendants cannot obtain them from anyone other than Plaintiffs' counsel.")

Case Date Jurisidction State Cite Checked
2017-03-31 Federal OH
Comment:

key case


Chapter: 47.506

Case Name: Obeid v. La Mack, 14 cv. 6498 (LTS) (MHD), 2015 U.S. Dist. LEXIS 127327 (S.D.N.Y. Sept. 16, 2015)
("Waiver of work-product immunity is less readily recognized than waiver of the attorney-client privilege. Work-product waiver will generally be found if the party has disclosed the work product to its adversary, although disclosure to certain adversaries will not always require waiver vis-à-vis others. . . . As a corollary, the courts have found a waiver of work-product protection based on a party's disclosure to a non-adversary if the disclosure is done in circumstances that make it likely that the material will be revealed to an adversary. See, e.g., id. (citing cases). In contrast, 'disclosure simply to another person who has an interest in the information but who is not reasonably viewed as a conduit to a potential adversary will not be deemed a waiver.")

Case Date Jurisidction State Cite Checked
2015-09-16 Federal NY

Chapter: 47.506

Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *57, *58, *62-63, *65, *71, *71-72, *73, *73-74, *74, *75 (N.D. Ill. Jan. 6, 2014)
(analyzing the waiver effect of a company disclosing work product-protected documents to a litigation funding company; concluding that (1) the litigation funding arrangement was not unlawful champerty or maintenance; (2) the arrangement between the company and the litigation funding company was not relevant and therefore was not discoverable; (3) the company's estimate of its chance of success was not admissible because it was opinion work product; (4) the company waived privilege protection for any documents shared with a litigation funding company, because they did not share a common legal interest; and (5) the company waived work product protection by disclosing its work product to prospective funders with which the company did not have a confidentiality agreement; "While disclosure of a document to a third party waives attorney-client privilege unless the disclosure is necessary to further the goal of enabling the client to seek informed legal assistance, the same is not necessarily true of documents protected by the work product doctrine. This disparity in treatment flows from the very different goals the privileges are designed to effectuate. The attorney-client privilege promotes the attorney-client relationship, and, indirectly, the functioning of our legal system, by protecting the confidentiality of communications between clients and their attorneys. . . . In contrast, the work-product doctrine promotes the adversary system directly by protecting the confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation."; "Because the work-product doctrine serves to protect an attorney's work product from falling into the hands of an adversary, a disclosure to a third party does not automatically waive work-product protection."; "To avoid the risk of disclosure, Miller took precautions through confidentiality agreements with at least some prospective funders."; "In contrast to the attorney-client privilege, the party asserting work product immunity is not required to prove non-waiver. The party asserting waiver has the burden to show that a waiver occurred."; "It is a relevant inquiry in cases like this whether the disclosing party had a reasonable basis for believing that the recipient would keep the disclosed material confidential. . . . While a confidentiality agreement may provide that basis, its absence may not be fatal to a finding of non-waiver. Phrased differently, a confidentiality agreement may be a sufficient but not a necessary element of a finding of non-waiver in cases like this. With or without a confidentiality agreement, it could be argued that a prospective funder would hardly advance his business interests by gratuitously informing an applicant's adversary in litigation about funding inquiries from that company. To do so would announce to future litigants looking for funding this was a company not to be trusted." (footnote omitted); "[W]here Miller had an oral or written confidentiality agreement, they remain protected and are not discoverable. But what about those funders with which Miller had no agreement? All Miller has said is that the turnovers to funders did not increase the chances that Caterpillar would get the information."; "[O]n the present record, it appears that Miller took protective measure with some but perhaps not all prospective funders. On the present record and given the absence of any developed legal argument from Miller, Caterpillar has sufficiently shown that as to the latter group of funders a turnover of information substantially increased the risk of disclosure to Caterpillar and resulted in a waiver of the work product privilege. Miller must produce all damage summaries, damage estimates and spread sheets."; "There is a final aspect of the materials I reviewed in camera that warrants separate mention. Miller has redacted on a funding application a percentage estimate of the chances of success in the case. The percentage estimate, which it bears repeating is quite high, is unexplained. It is simply a number. The identical, unexplained, percentage estimate appears in a number of other documents -- many are duplicates -- that Miller has listed on its revised Privilege Log."; "A numerical estimate of the chances of success, even if unexplained, would appear to fall within that portion of Rule 26(b)(3)(B) that covers materials containing 'the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.'"; "Miller, quite obviously, could not use its own estimate at trial since it would be irrelevant and run afoul of the hearsay rule. And given the rosy estimate, Caterpillar would never try to use it as an admission. But even if it did, it would never be admitted: the lawyers certainly could not testify about the basis for the estimate. In fact, that would be error."; "In sum, even if Caterpillar were foolhardy enough to seek admission of Miller's high estimate of its chances of success on the theory that the estimate was an admission, it would inevitably be excluded under Rule 403. . . . Hence, any unexplained, percentage estimate of the chances of success made by Miller to a prospective funder need not be produced.")

Case Date Jurisidction State Cite Checked
2014-01-06 Federal IL B 6/14

Chapter: 47.506

Case Name: Skynet Elec. Co., Ltd. v. Flextronics Int'l, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372, at *10, *10-11, *12 (N.D. Cal. Dec. 16, 2013)
(discussing the different waiver standards for privilege and work product protection; finding that disclosure to a Taiwanese "patent attorney" did not waive work product protection, although those "patent attorneys" were not actually lawyers; "Here, disclosure of the work product to Yan [Taiwanese patent attorney] did not make it substantially more likely that defendants would discover it. In fact, plaintiff cites extensive statutory authority for the proposition that Taiwanese patent agents are bound by law from disclosing their clients' confidential work product. For example, patent agents may 'refuse to testify, divulge confidences and produce documents.'" (internal citation omitted); "[A]lthough our court of appeals had not directly addressed this issue, the great weight of authority holds that disclosure of work product to individuals who share a common interest with the disclosing party does not constitute waiver."; "In agreement with the above stated authority, this order holds that the disclosure of work-product materials to Gwo-Jye Yan was not sufficient to waive work-product immunity.")

Case Date Jurisidction State Cite Checked
2013-12-16 Federal CA B 5/14

Chapter: 47.506

Case Name: Skynet Elec. Co., Ltd. v. Flextronics Int'l, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372, at *9 (N.D. Cal. Dec. 16, 2013)
(discussing the different waiver standards for privilege and work product protection; finding that disclosure to a Taiwanese "patent attorney" did not waive work product protection, although those "patent attorneys" were not actually lawyers; "The attorney-client privilege has its basis in the confidential nature of the communication and the reason for the privilege ordinarily ceases to exist if confidentiality is destroyed by voluntary disclosure to a third person. On the other hand, the purpose of work-product immunity is not to protect the evidence from disclosure to the outside world, but rather to protect it only from the knowledge of opposing counsel and client, thereby preventing its use against the lawyer gathering the materials. . . . Thus, disclosure of a document to a third person does not waive work-product immunity, unless it has substantially increased the opportunity for the adverse party to obtain the information.")

Case Date Jurisidction State Cite Checked
2013-12-16 Federal CA B 5/14

Chapter: 47.506

Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK) (JCF), 2013 U.S. Dist. LEXIS 113050, at *13-14 (S.D.N.Y. Aug. 9, 2013)
("I have already found that the interests of Amazon Watch and the Rainforest Action Network are sufficiently 'closely aligned with the defendants that disclosure to them did not create a substantial risk of further dissemination.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-08-09 Federal NY B 4/14

Chapter: 47.506

Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *120, *128 (D. Minn. June 4, 2013)
("Wells Fargo did not waive its privilege through disclosure [to accounting firm KPMG] because (1) Eighth Circuit law requires that a party intend for its adversary to see the work product in order to waive the privilege; (2) KPMG is not an adversary; (3) Wells Fargo did not intend for an adversary to see its work product; and (4) Wells Fargo did not intend for a conduit to an adversary to see its work product."; "[T]here is no evidence to establish that KPMG was a conduit to an adversary. The United States has presented no evidence about how often auditors in general make disclosures to the SEC or other entities. Furthermore, the United States presented no evidence that KPMG in particular had ever made disclosures to adversaries. The evidence thus shows nothing more than a remote possibility of disclosure, which is insufficient to deem a party a conduit to an adversary.")

Case Date Jurisidction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 47.506

Case Name: Keaton v. Hannum, No. 1:12-cv-00641-SEB-MJD, 2013 U.S. Dist. LEXIS 60519, at *23-24 (S.D. Ind. Apr. 29, 2013)
(holding that defendant's disclosure of work product to a Bar Disciplinary Committee to which she complained about plaintiff lawyer waived the work product protection, because there was no common interest between the defendant and the bar, and because making work product available to the bar made it possible for the plaintiff to obtain access to the materials because of the bar's duty to provide exculpatory evidence; "Neither party thoroughly explores whether Zook's communications with the Disciplinary Commission -- if work product protected -- were made in such a way as to 'substantially increase the ability of an adversary to gain the information.' However, Zook admits that information she provided to the Disciplinary Commission increases Keaton's ability to gain that information if it is exculpatory to Keaton. . . . As a result, the sharing of information between the Disciplinary Commission and Zook may increase the ability for Keaton to gain access to the information.")

Case Date Jurisidction State Cite Checked
2013-04-29 Federal IN B 7/13

Chapter: 47.506

Case Name: Lebbon v. City of Peoria, No. CV-12-00921-PHX-GMS, 2013 U.S. Dist. LEXIS 13146, at *3-4 (D. Ariz. Jan. 31, 2013)
(in a somewhat ambiguous explanation, arguably finding that disclosure of facts uncovering during an investigation waived the attorney-client privilege and the work product doctrine; "Here, Defendants disclosed the contents of the 2010 Investigation by citing to factual findings from the Investigation in their 2011 Memo to Lebbon. . . . By setting out those findings in the Memo, Defendants 'substantially increased the opportunity' for Lebbon to obtain that information. Defendants have thus waived any work product privilege they might have had regarding such information in the 2010 Investigation.")

Case Date Jurisidction State Cite Checked
2013-01-31 Federal AZ B 7/13

Chapter: 47.506

Case Name: Thai-Lao Lignite (Thai.) Co., Ltd. v. Gov't of Lao People's Democratic Republic, 945 F. Supp. 2d 431, 437 (S.D.N.Y. 2013)
("Respondent argues that it is entitled to assert a joint-defense or common-interest privilege over documents shared with Hill [Banpu's lawyer], as Banpu, Petitioners' former joint-venture partner, is itself now adverse to Petitioners, in a separate litigation arising out of the same facts as the arbitration underlying this action. The Court, however, need not reach the question of whether such a privilege applies, as there is no dispute that the Hill communications in question are work product, and work product protection is not waived by disclosure to a third party unless that disclosure materially increases the likelihood of disclosure to an adversary. . . . Petitioners have not shown that disclosure to Hill made disclosure to an adversary more likely, and therefore work-product protection has not been waived.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NY B 3/14

Chapter: 47.506

Case Name: Ashton v. Al Qaeda Islamic (In re Terrorist Attacks on September 11, 2001), 293 F.R.D. 539, 544 (S.D.N.Y. 2013)
(holding that plaintiffs' FOIA requests deserved work product protection, but the protection was waived when plaintiff sent the request to the government; explaining that the government was not an adversary, but providing the FOIA request to the government increased the chances that the defendants could obtain the request; "The Plaintiffs' decision to submit their FOIA Requests to the government means that they are now within the records of each agency to which they were sent and are therefore obtainable by anyone, including the Defendants, through an independent FOIA request. Not only is that kind of disclosure plainly inconsistent with the requirement that parties take reasonable steps to keep work product secret, but it also significantly raises the odds that such information might wind up in the hands of a litigation opponent."; "The Plaintiffs contend that their sharing of work product information with various government agencies should not lead to any waiver because the government is not their adversary in this or any related proceeding. . . . But even disclosure to non-adversaries waives work product protection if it materially increases the likelihood that an adversary can gain access to that information.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NY B 4/14

Chapter: 47.506

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 269 (E.D. Va. 2006)
("Unlike the attorney-client privilege, disclosure of work product does not automatically waive the doctrine's protections. See United States v. Am. Tel. & Tel. Co., 206 U.S. App. D.C. 317, 642 F.2d 1285 (D.C. Cir. 1980). Limited disclosure to third parties is insufficient to waive the work product privilege. See Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1223 (4th Cir. 1976). In order waive work product protection, the party must produce complete documents, see id. at 1299, or attempt to make testimonial use of the work product, See United States v. Nobles, 422 U.S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975). Therefore, even though Whitehurst revealed some parts of the letter at the City Council meeting, these revelations are not enough to waive work product protection under Rule 26(b)(3).)

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 47.506

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 269 (E.D. Va. 2006)
(assessing the privilege and work product protection for a letter that a City Attorney sent to the City Council, the City Manager and other officials; finding that the letter was privileged, but that the City had waived the privilege because: the City Attorney sent the letter in an envelope that was not marked confidential or sealed; the City Attorney might have faxed the letter to a City Council Member's home where his family could have intercepted it; the City did not have a training program or guidelines on the handling and disposal of privileged documents; neither the City Attorney nor any of the recipients objected when one of the City Council Members revealed some of the letter's content at a City Council Meeting; nevertheless finding that the letter also deserved work product protection, which had not been waived; "Unlike the attorney-client privilege, disclosure of work product does not automatically waive the doctrine's protections. . . . Limited disclosure to third parties is insufficient to waive the work product privilege. . . . In order waive [sic] work product protection, the party must produce complete documents, . . . or attempt to make testimonial use of the work product. . . . Therefore, even though Whitehurst revealed some parts of the letter at the City Council meeting, these revelations are not enough to waive work product protection under Rule 26(b)(3).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal

Chapter: 47.507

Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232-APG-GWF, 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
(holding that defendant Tropicana waived its privilege protection but not its work product protection by sharing due diligence material in an ongoing litigation to its ultimate acquirer; noting that plaintiff RKF sued Tropicana in 2014, and that Penn Gaming acquired Tropicana in 2015; creating a privilege waiver; "The protection of the work-product doctrine is not waived if the disclosing party has a reasonable basis to believe that the recipient will keep the disclosed materials confidential and not reveal them to the disclosing party's adversary. . . . If the disclosure is made under a written guarantee of confidentiality, then the case against waiver is even stronger. . . . The absence of a written agreement, however, does not require a finding of waiver. So long as the parties exchanging information do not act in a manner that is inconsistent with the doctrine's purpose, the work product privilege will be preserved."; "Penn Gaming had an interest at the time it received the information in preserving its confidentiality because it would, directly or indirectly, assume Tropicana's potential liability if the merger went through. Post-merger, Penn Gaming had even more incentive to preserve the confidentiality of the information. There is no evidence that Penn Gaming disclosed the information to any other persons either before or after the merger. Therefore, Tropicana did not waive its work product protection by providing information about the litigation to Penn Gaming prior to the August 2015 merger."; "Other courts have held that reserves set by the insurer in a first party insurance claim are irrelevant."; "Reserve information is relevant in an insurance bad faith lawsuit because the insurer has the contractual duty to defend and indemnify its insured, which also encompasses the duty to reasonably evaluate and settle claims within the policy's coverage. No similar duty exists in this case. Any amount that Tropicana set aside for accounting or business purposes to cover a possible award against it is irrelevant to proving its liability or the amount of RKF's damages. In this regard, settlement offers are inadmissible to prove the validity or amount of a disputed claim. Fed.R.Evid. 408(a). If actual settlement offers are inadmissible, then on what basis is a reserve admissible? Outside the insurance bad faith context, the Court perceives none. In any event, the reserves set by Tropicana are protected work product information for which RKF has not demonstrated a substantial need."; "Tropicana and Penn Gaming had a common business or commercial interest with respect to sharing information about the litigation, and the sharing of such information did not reasonably increase the risk that the documents would be disclosed to RKF.")

Case Date Jurisidction State Cite Checked
2017-05-25 Federal NV
Comment:

key case


Chapter: 47.507

Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *57, *58, *62-63, *65, *71, *71-72, *73, *73-74, *74, *75 (N.D. Ill. Jan. 6, 2014)
(analyzing the waiver effect of a company disclosing work product-protected documents to a litigation funding company; concluding that (1) the litigation funding arrangement was not unlawful champerty or maintenance; (2) the arrangement between the company and the litigation funding company was not relevant and therefore was not discoverable; (3) the company's estimate of its chance of success was not admissible because it was opinion work product; (4) the company waived privilege protection for any documents shared with a litigation funding company, because they did not share a common legal interest; and (5) the company waived work product protection by disclosing its work product to prospective funders with which the company did not have a confidentiality agreement; "While disclosure of a document to a third party waives attorney-client privilege unless the disclosure is necessary to further the goal of enabling the client to seek informed legal assistance, the same is not necessarily true of documents protected by the work product doctrine. This disparity in treatment flows from the very different goals the privileges are designed to effectuate. The attorney-client privilege promotes the attorney-client relationship, and, indirectly, the functioning of our legal system, by protecting the confidentiality of communications between clients and their attorneys. . . . In contrast, the work-product doctrine promotes the adversary system directly by protecting the confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation."; "Because the work-product doctrine serves to protect an attorney's work product from falling into the hands of an adversary, a disclosure to a third party does not automatically waive work-product protection."; "To avoid the risk of disclosure, Miller took precautions through confidentiality agreements with at least some prospective funders."; "In contrast to the attorney-client privilege, the party asserting work product immunity is not required to prove non-waiver. The party asserting waiver has the burden to show that a waiver occurred."; "It is a relevant inquiry in cases like this whether the disclosing party had a reasonable basis for believing that the recipient would keep the disclosed material confidential. . . . While a confidentiality agreement may provide that basis, its absence may not be fatal to a finding of non-waiver. Phrased differently, a confidentiality agreement may be a sufficient but not a necessary element of a finding of non-waiver in cases like this. With or without a confidentiality agreement, it could be argued that a prospective funder would hardly advance his business interests by gratuitously informing an applicant's adversary in litigation about funding inquiries from that company. To do so would announce to future litigants looking for funding this was a company not to be trusted." (footnote omitted); "[W]here Miller had an oral or written confidentiality agreement, they remain protected and are not discoverable. But what about those funders with which Miller had no agreement? All Miller has said is that the turnovers to funders did not increase the chances that Caterpillar would get the information."; "[O]n the present record, it appears that Miller took protective measure with some but perhaps not all prospective funders. On the present record and given the absence of any developed legal argument from Miller, Caterpillar has sufficiently shown that as to the latter group of funders a turnover of information substantially increased the risk of disclosure to Caterpillar and resulted in a waiver of the work product privilege. Miller must produce all damage summaries, damage estimates and spread sheets."; "There is a final aspect of the materials I reviewed in camera that warrants separate mention. Miller has redacted on a funding application a percentage estimate of the chances of success in the case. The percentage estimate, which it bears repeating is quite high, is unexplained. It is simply a number. The identical, unexplained, percentage estimate appears in a number of other documents -- many are duplicates -- that Miller has listed on its revised Privilege Log."; "A numerical estimate of the chances of success, even if unexplained, would appear to fall within that portion of Rule 26(b)(3)(B) that covers materials containing 'the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.'"; "Miller, quite obviously, could not use its own estimate at trial since it would be irrelevant and run afoul of the hearsay rule. And given the rosy estimate, Caterpillar would never try to use it as an admission. But even if it did, it would never be admitted: the lawyers certainly could not testify about the basis for the estimate. In fact, that would be error."; "In sum, even if Caterpillar were foolhardy enough to seek admission of Miller's high estimate of its chances of success on the theory that the estimate was an admission, it would inevitably be excluded under Rule 403. . . . Hence, any unexplained, percentage estimate of the chances of success made by Miller to a prospective funder need not be produced.")

Case Date Jurisidction State Cite Checked
2014-01-06 Federal IL B 6/14

Chapter: 47.507

Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 40 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "ChemWerth suggests that the lack of evidence of a confidentiality agreement between Bryan and Waldman [plaintiff's FDA consultant] supports its assertion that a waiver occurred. . . . However, the absence of such an agreement does not alter this court's conclusion that no waiver occurred. . . . As long as the parties exchanging information do not act in a manner that is inconsistent with the doctrine's purpose, the work product privilege will be preserved.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal MA B 5/14

Chapter: 47.508

Case Name: Waymo LLC v. Uber Technologies, Inc., No. C 17-00939 WHA, 2017 U.S. Dist. LEXIS 96852 (N.D. Cal. June 21, 2017)
(holding that Uber waived any work product protection for the due diligence report it prepared in connection with its purchase of Ottomotto, because it shared the work product with Ottomotto and its founder; "Judge Corley found that Uber waived any work-product privilege it may have had over the contents of the due diligence report by disclosing it to then-adversaries Ottomotto, Levandowski, and Ron, and that no 'common interest' prevented such waiver . . . . Uber objects that it did not disclose the due diligence report to an adversary, as required for waiver of work-product privilege, because defendants, Levandowski, and Ron shared a 'common interest' in that they all 'knew they faced litigation risk from Waymo even prior to the signing of the Put Call Agreement on April 11, 2016,' and 'irrespective of whether the deal closed.'"; "Uber also cites non-binding decisions for the proposition that parties on opposite sides of a transaction are not 'adversaries' for purposes of work-product privilege waiver. Judge Corley considered and rejected this proposition.")

Case Date Jurisidction State Cite Checked
2017-06-21 Federal CA

Chapter: 47.603

Case Name: Slaven v. Great American Ins. Co., No. 13 C 1370, 2015 U.S. Dist. LEXIS 33591 (N.D. Ill. March 18, 2015)
("Centrum has also provided at my request for in camera review, drafts of the letter that was ultimately sent from the Boundas Skarzynski firm to Mr. Slaven. They were prepared by the lawyers for their client in pursuit of their providing legal services and are thus protected from disclosure by the attorney/client privilege."; "The drafts in this case are also protected by the work-product doctrine since each confidential draft letter represents a step in the lawyers' evaluation of the legal problem under consideration and how best to handle it. It thus constitutes opinion work-product, 'meaning 'the mental impressions, conclusions, opinions, or legal theories of an attorney. . . .'")

Case Date Jurisidction State Cite Checked
2015-03-18 Federal IL