Showing 154 of 154 results

Chapter: 48.3

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Case Date Jurisidction State Cite Checked

Chapter: 48.7

Case Name: In re Grand Jury Matter #3 John Doe, No. 15-2475, 2017 U.S. App. LEXIS 1498 (3rd Cir. Jan. 27, 2017)
("Without the crime-fraud exception allowing the Government to show it to the grand jury, the email from Doe's lawyer is protected by the attorney work-product doctrine. That doctrine (often referred to as a privilege from or exception to disclosure), which is a complement to the attorney-client privilege, preserves the confidentiality of legal communications prepared in anticipation of litigation. Shielding work product from disclosure 'promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.'. . . Though Doe waived the attorney-client privilege by forwarding the email to his accountant, the document still retained its work-product status because it was used to prepare for Doe's case against those suing him."; "This evidence is strong, but it is not sufficient by itself to pierce the work-product protection. We have been clear that 'evidence of a crime or fraud, no matter how compelling, does not by itself satisfy both elements of the crime-fraud exception.'. . . Rather, the second requirement -- use in furtherance -- exists for the same reason that certain conspiracy statutes require proof that a defendant engaged in an overt act to further the crime. In both settings we want to make sure that we are not punishing someone for merely thinking about committing a bad act. Instead, as Justice Holmes noted in the conspiracy context, we ask for evidence that the plan 'has passed beyond words and is [actually] on foot.'"; "To illustrate, if a client approaches a lawyer with a fraudulent plan that the latter convinces the former to abandon, the relationship has worked precisely as intended. We reward this forbearance by keeping the work-product protection intact. If, by contrast, the client uses work product to further a fraud, the relationship has broken down, and the lawyer's services have been 'misused.'. . . Only in that limited circumstance -- misuse of work product in furtherance of a fraud -- does the scale tip in favor of breaking confidentiality."; "Here the only purported act in furtherance identified by the District Court was Doe forwarding the email to his accountant. If he had followed through and retroactively amended his tax returns, we would have no trouble finding an act in furtherance. Even if Doe had told the accountant to amend the returns and later gotten cold feet and called off the plan before it could be effected, there might still be a case to be made. That is because the Government 'does not have to show that the intended crime or fraud was accomplished, only that the lawyer's advice or other services were misused.'"; "But none of that happened. Doe merely forwarded the email to the accountant and said he wanted to 'discuss' it. There is no indication he had ever decided to amend the returns, and before the plan could proceed further the lawyer told the accountant to hold off. Thus Doe at most thought about using his lawyer's work product in furtherance of a fraud, but he never actually did so. What happened is not so different than if Doe merely wrote a private note, not sent to anyone, reminding himself to think about his lawyer's suggestion. The absence of a meaningful distinction between these scenarios shows why finding an act in furtherance here lacks a limiting principle and risks overcoming confidentiality based on mere thought.")

Case Date Jurisidction State Cite Checked
2017-01-27 Federal

Chapter: 48.7

Case Name: Cave Consulting Group, Inc. v. Optuminsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 147900 (N.D. Cal. Oct. 25, 2016)
(holding that disclosure waived the attorney-client privilege but not the work product protection; "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."; "Where Symmetry presented its counsel's investigation and legal conclusion as a sword to persuade the USPTO to rule in its favor in the reexamination, it cannot also rely on the work product doctrine as a shield to bar discovery of documents prepared or gathered during that investigation and that serve as a basis for that legal conclusion, nor other material related to the same subject matter. . . . Such waiver is limited to the same scope as the attorney-client privilege waiver discussed above, including the cutoff date of April 28, 2014. Moreover, work product protection is waived only as to 'factual' or 'non-opinion' work product'; there is no waiver as to counsel's 'mental impressions, conclusions, opinions, or legal theories.")

Case Date Jurisidction State Cite Checked
2016-10-25 Federal CA

Chapter: 48.7

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: 48.7

Case Name: United States ex rel. Calilung v. Ormat Industries, Ltd., 3:14-cv-00325-RCJ-VPC, 2016 U.S. Dist. LEXIS 100292 (D. Nev. Aug. 1, 2016)
(in a qui tam action, finding that defendant waived the privilege protection but not its work product protection by sharing documents with consultants; "[T]he court finds that Ormat waived attorney-client privilege by disclosing the confidential communications to third parties. Still, the finding does not necessarily compel Ormat to produce the relevant documents, many of which may be protected work product. . . . The work product doctrine offers broader protection than the attorney-client privilege. . . . Work-product protection is not 'waived by disclosure to a third party who does not share a common legal interest.'. . . The court suggests that Ormat weigh the extent and limitations of the work product doctrine, and take stock of its privilege log accordingly. To the extent that there are documents appearing on the log for which Ormat has not claimed work product protection and which this court has deemed not privileged, they must be produced. Ormat and Relators are to meet and confer to determine the appropriate procedures and a timeline for doing so.")

Case Date Jurisidction State Cite Checked
2016-08-01 Federal NV
Comment:

key case


Chapter: 48.7

Case Name: Roberts v. Clark County School District, Case No. 2:15-cv-00388-JAD-PAL, 2016 U.S. Dist. LEXIS 60995 (D. Nev. May 9, 2016)
(holding that disclosing privileged documents to the EEOC waived the attorney-client privilege, but not the work product doctrine; "Although CCSD has waived its attorney-client privilege on the advice of counsel and communications to Bradley and the EEOC which formed the basis for denying Roberts' use of the men's restroom, it has not waived its qualified work product protection. The work product protection serves a different purpose than the attorney-client privilege, and is intended to allow the client to retain the benefits of the lawyers' work without intrusion of opposing parties and their counsel. In reviewing the privileged document logs and documents themselves, very few of the documents qualify for work-product protection. However, the court finds CCSD has not waived its qualified work product immunity by disclosing some arguably attorney-client privileged documents to the EEOC during its investigation, or by asserting a good-faith defense to the claims in this complaint.")

Case Date Jurisidction State Cite Checked
2016-05-09 Federal NV

Chapter: 48.7

Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2016 U.S. Dist. LEXIS 61371 (D. Nev. May 5, 2016)
(finding that Dynegy waived its privilege protection by giving the federal government documents about a gas price fixing investigation, but did not waive its work product protection; "[T]he court finds that Dynegy did not waive its work-product protection by producing its work product to investigating governmental agencies. The attorney-client and work-product privileges serve different purposes. The court agrees with the conclusion of Wright & Miller and those cases that have held that disclosure to third persons should not result in waiver of the work-product privilege unless it has substantially increased the opportunities for potential adversaries to obtain the materials."; "It is undisputed that Dynegy hired two outside law firms to investigate the government task force's allegations, to assist in complying with government information requests and to provide Dynegy with legal advice about potential litigation. The court is satisfied that the documents were produced 'because of' anticipated litigation and would not have been prepared in substantially similar form without the threat of litigation by the government.")

Case Date Jurisidction State Cite Checked
2016-05-05 Federal NV
Comment:

key case


Chapter: 48.7

Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711, at *3, *4-5, *5-6, *6, *8, *9-10, *11 (D. Ariz. Sept. 29, 2015)
(holding that the attorney-client privilege protection did not cover communications between the plaintiff and his lawyer in the presence of the plaintiff's father-in-law, and that the plaintiff's disclosure of work product to the father-in-law did not waive that protection; also holding that the father-in-law could create protected work product; "Plaintiff's memorandum and the communications reviewed in camera make clear that Mr. Prussin is a friend of Plaintiff's, as well as his father-in-law, and an individual from whom Plaintiff seeks counsel. The submissions also make clear that Mr. Prussin did discuss litigation strategy with Plaintiff and his counsel. The Court cannot conclude, however, that this relationship brings Mr. Prussin within the attorney-client privilege."; "The court in Evans [United States v. Evans, 113 F.3d 1457 (7th Cir. 1997)] held that the presence of the defendant's friend, Holden, in communications with attorneys, resulted in waiver of the attorney-client privilege even though Holden was there to provide support and advice, to help locate a suitable criminal defense attorney, and was himself a lawyer."; "Plaintiff relies on Benedict v. Amaducci, No. 92-cv-05239-KMW, 1995 U.S. Dist. LEXIS 573, 1995 WL 23555 (S.D.N.Y. Jan. 20, 1995), in which a plaintiff informally retained a close friend with financial expertise to act as a financial advisor and assist in preparing plaintiff for litigation. 1995 U.S. Dist. LEXIS 573, [WL] at *1. The court found that the advisor became the functional equivalent of an independent contractor, and eventually entered into an oral agreement to receive compensation for his services. Id. The court held that the privilege protected only 'those communications involving [the advisor] when he was acting as plaintiffs' representative with respect to litigation, impending or pending.' 1995 U.S. Dist. LEXIS 573, [WL] at *2."; "Mr. Prussin is more like the friend of Evans than the friend in Benedict. The Court cannot conclude that Mr. Prussin acted as an independent contractor. Plaintiff has not identified any agreement that Mr. Prussin act in that capacity or be paid for his services. Mr. Prussin's actions were much like those of Holden in the Evans case -- a friend helping to arrange counsel, providing support, and participating in attorney-client communications. As in Evans, the Court concludes that Mr. Prussin was not necessary to Plaintiff's communications with his counsel and does not fall within the privilege."; "The work product protection applies not only to emails written by Mr. Prussin to Plaintiff and his counsel, but also to emails written to Plaintiff alone, so long as they were written in anticipation of litigation."; "The Court also concludes that emails written by Plaintiff and his counsel in anticipation of litigation constitute work product, and that they retain this protection even though they were shared with Mr. Prussin. As many courts have recognized, unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person."; "Mr. Prussin is closely allied with Plaintiff in this litigation. His interests are aligned with Plaintiff's. The Court cannot conclude that disclosure of work product to him substantially increased the opportunity for Defendants to obtain the information, or that it was otherwise inconsistent with the work product protection. The Court concludes, therefore, that the disclosure did not waive the protection.")

Case Date Jurisidction State Cite Checked
2015-09-29 Federal AZ B 7/16
Comment:

key case


Chapter: 48.7

Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
December 2, 2015 (PRIVILEGE POINT)

"Decision Highlights a Key Difference Between Attorney-Client Privilege and Work Product Doctrine Protection"

The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege. This distinction affects the impact of third parties' participation, and disclosure of protected communications or documents to third parties.

In Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015), the court dealt with plaintiff's communications with his lawyer — in the plaintiff's father-in-law's presence. The court found that the father-in-law's participation rendered the privilege unavailable — holding that the father-in-law "was not necessary to Plaintiff's communications with his counsel and [therefore] does not fall within the privilege." Id. At *6. In addressing the work product doctrine, the court applied the universal rule that "unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person." Id. At *10. Because the father-in-law's "interests are aligned with Plaintiff's," disclosing work product to the father-in-law did not waive that separate protection. Id. At *11. In fact, the court concluded that the plaintiff's father-in-law could himself prepare protected work product under Fed. R. Civ. P. Rule 26(b)(3)(A) — which can cover documents prepared in anticipation of litigation "for" a party (such as the plaintiff). Id. At *7.

The attorney-client privilege and the work product doctrine apply in dramatically different ways in the context of friendly third parties — who are generally outside privilege protection but inside work product protection, and who, even themselves, can create protected work product. Corporate lawyers should remember these rules when considering their corporate clients' friendly third parties such as accountants, consultants, or other agents.

Case Date Jurisidction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 48.7

Case Name: Skynet Electronic Co. v. Flextronics International, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372 (N.D. Cal. Dec. 16, 2013)
January 29, 2014 (PRIVILEGE POINT)

"Northern District of California Decision Highlights Wisdom of Analyzing Both Privilege and Work Product Protection"

The attorney-client privilege provides absolute protection, but can be very difficult to create and easily lost. In contrast, work product protection can be overcome, but survives disclosure to friendly third parties.

In Skynet Electronic Co. v. Flextronics International, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372 (N.D. Cal. Dec. 16, 2013), Skynet disclosed a memorandum prepared by Andrews Kurth to a Taiwanese patent "attorney." Defendants claimed that Skynet waived any privilege protection, because Taiwanese patent "attorneys" are not actually lawyers. Id. At *4. The court found it unnecessary to deal with the privilege issue, because it concluded that the memorandum also deserved work product protection, which survived the disclosure. The court acknowledged that privilege protection "ordinarily ceases to exist if confidentiality is destroyed by voluntary disclosure to a third person." Id. At *9. However, disclosing work product to a third party "does not waive work-product immunity, unless it has substantially increased the opportunity for the adverse party to obtain the information." Id. The court found that disclosure to the Taiwanese patent "attorney" "did not make it substantially more likely that defendants would discover it." Id. At *10.

Although the attorney-client privilege provides absolute protection, its fragility makes it more vulnerable to waiver. For this and other reasons, clients and their lawyers should also consider the possible applicability of the very different but sometimes more advantageous work product protection.

Case Date Jurisidction State Cite Checked
2013-12-16 Federal CA
Comment:

key case


Chapter: 48.7

Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *10 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "Communications between either Astellas [defendant] or outside counsel and employees of public relations firms Hill & Knowlton and Fleishman-Hillard are neither privileged nor protected work product. Astellas has not shown that communications with either firm were necessary, or at least highly useful, for the rendering of legal advice. Cavallaro v. United States, 284 F.3d 236, 247 (1st Cir. 2002). Rather, it appears that both Hill & Knowlton and Fleishman-Hillard provided Astellas with standard public relations services related to the filing and outcome of the citizen petition and any subsequent business or media fallout. Moreover, even if the firms provided public relations advice or documents bearing upon potential litigation over the citizen petition, such materials fall outside the scope of work-product protection, which is intended 'to provide a zone of privacy for strategizing about the conduct of litigation itself, not for strategizing about the effects of the litigation on the client's customers, the media, or on the public generally.' Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000).")

Case Date Jurisidction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 48.7

Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *11 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "The results of paralegal Marilynn Whitney's monitoring of the generic tacrolimus market, conducted at the request of Wertjes [defendant's n-house lawyer] and outside counsel, is work product and remains protected even if shared with Goodman and Rich Wartel of Two Labs Marketing, a 'friendly party.'")

Case Date Jurisidction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 48.7

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *9-10 (E.D. Va. Dec. 14, 2012)
("[A]ny document that was prepared in anticipation of the contempt proceeding could reasonably be seen as being entitled to work product protection. Lawson has failed to establish that any of the documents were prepared in anticipation of litigation prior to the filing of ePlus' MOTION FOR ORDER TO SHOW CAUSE . . . on September 9, 2011. However, documents prepared after that date and prepared in anticipation of those proceedings are entitled to work product protection, even where their subject matter falls within the subject matter waiver of attorney-client privilege, as long as they have been properly claimed as such in the privilege log.")

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

Chapter: 48.7

Case Name: E.I. DuPont De Nemours & Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 605-606 (E.D. Va. 2010)
("That said, the Fourth Circuit treats waiver of opinion work product differently from both fact work product and attorney-client privileged communications. As explained in a recent district court decision within the Fourth Circuit: '[t]he waiver of the attorney-client privilege for a communication does not automatically waive whatever work-product immunity that communication may also enjoy, as the two are independent and grounded on different policies. Waiver of the privilege should always be analyzed distinctly from waiver of work product, since the privilege is that of the client and the work product essentially protects the attorney's work and mental impressions from adversaries and third parties even when communicated to the client.' Cont'l Cas. Co. v. Under Armour, Inc., 537 F. Supp. 2d 761, 769 (D. Md. 2008).")

Case Date Jurisidction State Cite Checked
Federal VA B 3/16

Chapter: 48.9

Case Name: Hanson v. Wells Fargo Home Mortg., Case No. C13-0939JLR, 2013 U.S. Dist. LEXIS 149752, at *14, *15 (W.D. Wash. Oct. 17, 2013)
(finding that the inadvertent disclosure of privileged communications did not result in a waiver; "Courts of the Ninth Circuit still tend to apply the 'totality of the circumstances approach' to 'cases involving the 'inadvertent' disclosure' of attorney-client privileged or work-product protected documents without consideration for the elements of Federal Rule of Evidence 502(b).'" (citations omitted); "Some of these factors are duplicative of those in Federal Rule of Evidence 502(b). The court will apply the standard codified in Federal Rule of Evidence 502(b) and also utilize some of the factors from the 'totality of the circumstances approach' in its analysis.")

Case Date Jurisidction State Cite Checked
2013-10-17 Federal WA B 5/15

Chapter: 48.10

Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; explaining that the criminal defense lawyer answered as follows when the court asked the lawyer whether he was aware of "any constitutional claims to be made in this case in [the client's] defense: "'I don't believe I can answer that question without revealing attorney work product, Your Honor.'"; "Because Defendant wishes to plead guilty and waive his constitutional rights, the Court is required to determine whether Defendant's guilty plea is voluntary and the waiver of Defendant's constitutional rights is knowing and intelligent. . . . While Defense counsel answered 'yes' to the Court's question as to whether Defendant had been competent and able to cooperate with him in the case . . . Defense counsel then asserted attorney opinion work product protection in response to the Court's 'meritorious defenses' and 'constitutional violations' questions. Defense counsel later explained to the Court, in a hypothetical context, and as an example of why an attorney might assert attorney opinion work product, that when he sees a constitutional violation that may not result in suppression, he can discuss that with his client, and with the direction of his client, not pursue that claim. . . . Defense counsel further explained that, in such a hypothetical situation, 'the process of explaining my, how -- what legal issue I see, my analysis of the issue and what led to my conclusion not to raise that issue, is the heartland of opinion attorney work product. It's my legal analysis of a potential claim and of why I did or did not make a decision to raise that claim in this litigation."; "While it is true that an attorney can assert attorney opinion work product protection even if the client is not asserting the protection, such assertion must occur in the rarest of circumstances in a guilty plea context."; "For these reasons, the Court concludes that when, during a guilty plea hearing, a criminal defendant does not assert work product protection, but his defense attorney thereafter asserts attorney opinion work product protection in response to the Court's questions seeking to determine whether defendant is pleading weighty guilty voluntarily, considerations of knowingly, and public policy intelligently, and a proper administration of justice militate in favor of piercing attorney opinion work product protection. Such an invocation of the doctrine constitutes a rare and extraordinary circumstance justifying an exception to attorney opinion work product protection."; "Because the Court has concluded that an exception to the attorney opinion work product doctrine applies on these unique facts, the Court ORDERS that all parties appear before the Court once again in order to allow the Court to inquire of Defense counsel regarding the existence of potential meritorious defenses or constitutional violations related to Defendant's case.")

Case Date Jurisidction State Cite Checked
2016-10-25 Federal VA

Chapter: 48.10

Case Name: In re Intuitive Surgical Securities Litigation, Case No. 5:13-cv-01920-EJD (HRL), 2016 U.S. Dist. LEXIS 127486 (N.D. Cal. Sept. 19, 2016)
(holding that the plaintiff waived work product protection by including quotes from defendant's former employees that the plaintiff's lawyer obtained during interviews; allowing plaintiff to continue withholding the interview notes, although the plaintiff's use of the notes later could result in a different outcome; "Defendants argue that the work product protection was waived during Endweiss' interview because he was asked about his communications with plaintiffs' counsel and investigator, and Endweiss provided detailed answers, with no work product objection from plaintiffs' counsel. . . . There is no indication that the documents in question were disclosed during Endweiss' deposition. This court therefore does not find that the work product protection was waived.")

Case Date Jurisidction State Cite Checked
2016-09-19 Federal CA

Chapter: 48.10

Case Name: Sparks v. Norfolk Southern Railway Co., Cause No. 2:14-CV-40-JTM-PRC, 2015 U.S. Dist. LEXIS 135317 (N.D. Ind. Oct. 5, 2015)
(holding that defendant's argument that a personal injury plaintiff employee had released his claims did not trigger an additional waiver requiring defendant to produce its claim files; "Unlike in Harding [Harding v. Dana Transportation, Inc., 914 F. Supp. 1084 (D.N.J. 1996)], however, Defendant did not raise as a defense the adequacy of its investigation. Instead, Defendant is arguing that the executed release provides a defense to liability. A privilege-holder may waive its work product protections by putting privileged matter in issue as evidence in a case, but that is not what has happened here. It is Plaintiff who argues mutual mistake, and it is Plaintiff who wants to prove this mutual mistake through the items sought in discovery. Further, even under Plaintiff's theory of mutual mistake in the underlying case, the question is what Defendant knew about Plaintiff's condition at the time of settlement, not what the disputed documents say or the method or nature of Defendant's investigation.")

Case Date Jurisidction State Cite Checked
2015-10-05 Federal ID

Chapter: 48.10

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)
(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; applying Federal Rule of Evidence 502 in concluding that GM did not waive its privilege protection; "Applying Rule 502, there is no basis to conclude that New GM waived either attorney-client privilege or the attorney work product doctrine with respect to documents that New GM has withheld -- namely, the Interview Materials. Specifically, as New GM has shown, the company has -- as of today's date -- 'neither offensively used the Valukas Report in litigation nor made a selective or misleading presentation that is unfair to adversaries in this litigation, or any other.' . . . New GM has produced, or soon will produce, millions of pages of documents, including many that would otherwise be privileged (pursuant to the Court's Rule 502(d) Order).")

Case Date Jurisidction State Cite Checked
2015-01-15 Federal NY

Chapter: 48.10

Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *32-33, *32 n.7, *33-34, *35-36 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; finding a waiver, and discussing the scope of the waiver; "To clarify: all attorney-client and work-product protection from the underlying litigation has been waived for documents relating either to reasonableness of fees expended or to any potential agreement regarding hourly rates. As an example, the Court expects that many of the documents relating to the so-called 'fee-splitting' issue (that is, the process by which Fulbright [plaintiff's law firm] may or may not have allocated defense costs between Feld and the corporate entity Feld Entertainment, Inc.) will be relevant to the reasonableness of the total amount of fees for which Feld seeks reimbursement. Such documents are no longer privileged, and should be produced if responsive to FFIC's discovery requests. Similarly, Feld cannot withhold documents on the basis of his unilateral assessment that certain categories of documents 'are of limited evidentiary value.'" (internal citation omtted); "It is possible that some of these documents can escape production on other grounds. For example, some of them may be composed solely of work product prepared in anticipation of this litigation, rather than in anticipation of the underlying litigation. Such documents remain privileged, as discussed in further detail below."; "The parties made passing references in their briefing to the distinction between 'fact' work product (typically discoverable after a showing of substantial need') and 'opinion' work product (rarely discoverable under any circumstances). The Court's waiver holding extends both to fact work product and opinion work product. To be sure, it seems much less likely that an attorney's mental impressions or legal conclusions will bear on the critical issues in this case: the reasonableness of fees and the presence of an agreement on hourly rates. But to the extent they do, they are subject to waiver for all the reasons explained above. Courts that have analyzed at-issue waiver of the work-product privilege have generally (though not uniformly) taken this view."; "To be clear: both waiver holdings apply only to documents and communications generated in connection with the underlying personal injury litigation for which Feld seeks reimbursement of attorney's fees. The reason is simple: Feld has not put the work of his attorneys on this litigation at issue in this case, so any privilege claims over those documents and communications remain valid -- even assuming such documents were otherwise within the scope of permissible discovery, and responsive to FFIC's discovery requests. To the extent individual documents (or portions thereof) were generated in anticipation of both cases, producing documents in redacted form may be required.")

Case Date Jurisidction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 48.10

Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *22-23, *24 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "[T]he Court finds that Feld has waived the work-product privilege with respect to materials in the underlying litigation by placing attorney work-product at issue, by bringing this indemnification lawsuit seeking reimbursement of attorney's fees."; "[T]his is not the first time the doctrine of at-issue waiver of the work-product privilege has been considered in the context of a lawsuit seeking indemnification for attorney's fees. The weight of authority supports finding waiver in this context.")

Case Date Jurisidction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 48.10

Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *30-31 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "By filing a lawsuit seeking indemnification for attorney's fees, Feld necessarily placed the work of his attorneys directly at issue. He has done so with respect to two key issues in the case: (1) 'the reasonableness and necessity of the fees and expenses incurred by Feld in the Underlying Action,' and (2) 'the parties' agreement -- or lack thereof -- as to the hourly rates to be paid by FFIC' under the relevant insurance policies. . . . In other words, this case cannot be resolved without determining whether the legal fees generated by Feld were reasonable, or without determining whether the parties came to an agreement regarding hourly rates.")

Case Date Jurisidction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 48.10

Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *23 (N.D. Ohio Aug. 8, 2013)
("Protection of work product belongs to the professional, not the client. . . . Trustee fails to cite any case law to support a waiver of the work product doctrine by an assertion of an affirmative defense of advice of professionals by Debtor.")

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

Chapter: 48.10

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *11-12 (E.D. Va. Dec. 3, 2012)
("The Fourth Circuit has explained the general waiver doctrine as follows: 'A client can waive an attorney-client privilege expressly or through his own conduct. Implied waiver occurs when a party claiming the privilege has voluntarily disclosed confidential information on a given subject matter to a party not covered by the privilege. However, an attorney may not unilaterally waive the privilege that his client enjoys. The ability to protect work product normally extends to both clients and attorneys, and the attorney or the client, expressly or by conduct, can waive or forfeit it, but only as to himself.' Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 293-94 (4th Cir. 2004) (emphasis in original) (citations and internal quotation marks omitted).")

Case Date Jurisidction State Cite Checked
2012-12-03 Federal VA

Chapter: 48.10

Case Name: Franklin United Methodist Home, Inc. v. Lancaster Pollard & Co., 909 F. Supp. 2d 1037, 1047, 1048 (S.D. Ind. Nov. 8, 2012)
(analyzing a situation in which a plaintiff sued a financial advisor for malpractice, which did not trigger an at issue waiver involving privileged communication; "Defendants argue that FUMH's professional-malpractice and breach-of-fiduciary-duty claims against them has placed the cause of its settlement with Lehman directly in-issue and, thereby, waived FUMH's attorney-client and work-product privileges regarding any materials relevant to the causes of that settlement, including communications with its attorneys regarding, e.g., litigation strategy, investigation of the facts, legal evaluations, and advice, and its attorneys' work involving these matters."; "The Court agrees with FUMH's description of its causation burden: Defendants' bad advice caused Lehman to assert the Lehman Claims against FUMH, the natural, foreseeable, and proximate result of which was FUMH incurring defense costs and being placed in the position of either litigating the Claims or making a reasonable settlement (and incurring the costs of either choice). To recover the cost of its settlement, FUMH must prove that its settlement was objectively reasonable considering the circumstances that it faced."; "As FUMH concedes, Defendants are free to utilize all the tools of discovery, including a Fed. R. Civ. P. 30(b)(6) deposition, to inquire into the facts relating to FUMH's decision to settle with Lehman, including the information that it knew at the time and information on which it relied in making that decision, including whether such information was obtained through privileged sources. However, Defendants may not discover the content of any privileged attorney-client communications or work product.")

Case Date Jurisidction State Cite Checked
2012-11-08 Federal IN B 7/13

Chapter: 48.10

Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *15 (E.D. Va. July 18, 2011)
("Therefore, a 'signal feature of implied waiver . . . is the attempt to make testimonial use of work-product materials.' Id. at 624. An 'attempt to make testimonial use of the work product[,]' waives the privilege and lifts the materials into the realm of discoverability. Chase v. City of Portsmouth, 236 F.R.D. 263, 269 (E.D. Va. 2006) (citing Nobles, 422 U.S. at 239).")

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

Chapter: 48.10

Case Name: Luthman v. GEICO, 40 Va. Cir. 404, 405-06 (Va. Cir. Ct. 1996)
(finding that a first party insurer's assertion of an "advice of counsel" defense waived the work product doctrine protection and that the defendant's assertion of an "advice of counsel" defense waived the attorney-client privilege; in "bad faith" claim against first party insurer, the work product doctrine was inapplicable because "the opinions and impressions of the defendants' agents and attorneys are directly at issue in determining whether the defendants acted in bad faith"; adopting the reasoning of Hartman v. Banks, 164 F.R.D. 167 (E.D. Pa. 1995), and Reavis v. Metropolitan Property & Liab. Ins. Co., 117 F.R.D. 160 (S.D. Cal. 1987), in holding that an insurance lawyer's entire files -- including opinion work product were discoverable despite the work product protection in a case involving a bad faith denial of insurance coverage claim; also noting that the insurance company impliedly waived the attorney-client privilege by asserting advice of counsel)

Case Date Jurisidction State Cite Checked
1996-01-01 State VA

Chapter: 48.11

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551 (N.D. Cal. May 6, 2016)
(finding that there was no work product waiver when a witness testified differently in a deposition than the physician stated in the complaint; "[T]he work product privilege would be meaningless if every time a witness testifies differently from what was alleged in a complaint, and the defendant raises that issue with the court, the party for whom the witness testifies is deemed to have waived the protection by responding that the party had a good faith basis for making the allegations in the first instance.")

Case Date Jurisidction State Cite Checked
2016-05-06 Federal CA

Chapter: 48.11

Case Name: FDIC v. Lowis & Gellen LLP, No. 11 CV 5902, 2014 U.S. Dist. LEXIS 21022, at *11 (N.D. Ill. Feb. 20, 2014)
("Courts generally apply the same at-issue test used in attorney-client privilege scenarios to determine whether to waive the work-product protection.")

Case Date Jurisidction State Cite Checked
2014-02-20 Federal IL B 7/14

Chapter: 48.11

Case Name: Koss v. Palmer Water Dep't, Civ. A. No. 12-30170-MAP, 2013 U.S. Dist. LEXIS 144702, at *6 (D. Mass. Oct. 7, 2013)
(analyzing the Faragher-Ellerth (Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998)) doctrine; "In contrast, the documents reviewed here demonstrate that the attorneys at Royal LLP [defendants' lawyers], although not personally conducting interviews, not only directed and collaborated with Mr. Rigali [investigator assisting defendants], but exercised significant control and influence over him throughout the investigation. As the documents make obvious, the Royal LLP attorneys were part and parcel of the investigation which goes to the heart of Defendants' affirmative defense. These are the very types of documents which were ordered produced in Angelone [v. Xerox Corp., No. 09-CV-6019, 2011 U.S. Dist. LEXIS 109407, at *8 (W.D.N.Y. Sept. 26, 2011)].")

Case Date Jurisidction State Cite Checked
2013-10-07 Federal MA B 5/14

Chapter: 48.11

Case Name: Koss v. Palmer Water Dep't, Civ. A. No. 12-30170-MAP, 2013 U.S. Dist. LEXIS 144702, at *3 (D. Mass. Oct. 7, 2013)
(analyzing the Faragher-Ellerth doctrine; "As the court stated in its original order, 'when a Title VII defendant affirmatively invokes a Faragher-Ellerth defense [Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998)] that is premised . . . on the results of an internal investigation, the defendant waives the attorney-client privilege and work product protections for not only the report itself, but for all documents, witness interviews, notes and memoranda created as part of and in furtherance of the investigation.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-10-07 Federal MA B 5/14

Chapter: 48.11

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 615 n.255 (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; "The Eleventh Circuit has announced that the 'at-issue' (i.e., a subject matter which has been placed 'at-issue' in litigation) waiver doctrine does not extend to materials protected by work-product immunity.")

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

Chapter: 48.11

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 624 (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; "'At-issue' waiver applies when a party injects the work-product directly into the litigation, as necessary to prove an element of a claim or defense.'" (citation omitted))

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

Chapter: 48.11

Case Name: Abbo-Bradley v. City of Niagara Falls, 293 F.R.D. 401, 408-09 (W.D.N.Y. 2013)
("[A]ction for damages and equitable relief stemming from the discharge of hazardous materials into the environment as a result of defendants' alleged negligent operation, maintenance and monitoring of the remedial systems at the Love Canal Landfill, plaintiffs placed at issue the chemical composition of the soil, water, groundwater, air, and other environmental conditions present in the surrounding neighborhoods -- the very information they now seek to protect from disclosure under the shield of the work product doctrine.")

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

Chapter: 48.16

Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; explaining that the criminal defense lawyer answered as follows when the court asked the lawyer whether he was aware of "any constitutional claims to be made in this case in [the client's] defense: "'I don't believe I can answer that question without revealing attorney work product, Your Honor.'"; "Because Defendant wishes to plead guilty and waive his constitutional rights, the Court is required to determine whether Defendant's guilty plea is voluntary and the waiver of Defendant's constitutional rights is knowing and intelligent. . . . While Defense counsel answered 'yes' to the Court's question as to whether Defendant had been competent and able to cooperate with him in the case . . . Defense counsel then asserted attorney opinion work product protection in response to the Court's 'meritorious defenses' and 'constitutional violations' questions. Defense counsel later explained to the Court, in a hypothetical context, and as an example of why an attorney might assert attorney opinion work product, that when he sees a constitutional violation that may not result in suppression, he can discuss that with his client, and with the direction of his client, not pursue that claim. . . . Defense counsel further explained that, in such a hypothetical situation, 'the process of explaining my, how -- what legal issue I see, my analysis of the issue and what led to my conclusion not to raise that issue, is the heartland of opinion attorney work product. It's my legal analysis of a potential claim and of why I did or did not make a decision to raise that claim in this litigation."; "While it is true that an attorney can assert attorney opinion work product protection even if the client is not asserting the protection, such assertion must occur in the rarest of circumstances in a guilty plea context."; "For these reasons, the Court concludes that when, during a guilty plea hearing, a criminal defendant does not assert work product protection, but his defense attorney thereafter asserts attorney opinion work product protection in response to the Court's questions seeking to determine whether defendant is pleading weighty guilty voluntarily, considerations of knowingly, and public policy intelligently, and a proper administration of justice militate in favor of piercing attorney opinion work product protection. Such an invocation of the doctrine constitutes a rare and extraordinary circumstance justifying an exception to attorney opinion work product protection."; "Because the Court has concluded that an exception to the attorney opinion work product doctrine applies on these unique facts, the Court ORDERS that all parties appear before the Court once again in order to allow the Court to inquire of Defense counsel regarding the existence of potential meritorious defenses or constitutional violations related to Defendant's case.")

Case Date Jurisidction State Cite Checked
2016-10-25 Federal VA

Chapter: 48.202

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; "Bard contends that its distribution of the Report to 12 internal employees did not substantially increase the opportunity for Plaintiffs to obtain the Report. The Court agrees."; "[T]he Court cannot conclude that one high-level employee's receipt of the Report without Passero's restrictions substantially increased the risk that the Report would be distributed outside of Bard."; "The Court concludes that Bard's internal distribution of the Report to 12 employees did not substantially increase the opportunity for Plaintiffs or others outside of Bard to obtain the Report.")

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

key case


Chapter: 48.202

Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)
(inexplicably holding that intra-corporate disclosure of work product to an employee outside the control group waived the work product protection; "Plaintiffs do not rely on her position as the Agency's controller to support their claim. They appear to assume that Whitney's employee status confers a common legal interest per se. If that were the case, corporations could routinely disseminate privileged communications with all of their employees and hide beneath the broad cloak of the common interest doctrine. Clearly, that is not the case. Thus Plaintiffs have failed to carry their burden of showing that emails that included her did not waive the attorney-client privilege. Assertions of the work product doctrine are waived for the same reasons.")

Case Date Jurisidction State Cite Checked
2015-06-18 Federal IL

Chapter: 48.202

Case Name: Lindon v. Kakavand, Civ. A. No. 5:13-026-DCR, 2014 U.S. Dist. LEXIS 113304 (E.D. Ky. Aug. 15, 2014)
("UKMC did not disseminate the Bradley Report to any adversary or potential adversary. Rather, the report was provided only to UKMC personnel. UKMC's circulation of the Bradley Report did not waive the report's protection as work product or work of a non-testifying expert consultant.")

Case Date Jurisidction State Cite Checked
2014-08-15 Federal KY

Chapter: 48.202

Case Name: State v. Lead Indus. Assoc., 64 A.3d 1183, 1196 (R.I. 2013)
(holding that a Sherwin-Williams PowerPoint presentation to its board of directors about available insurance coverage deserved fact work product protection; "[I]t is our opinion that Sherwin-Williams did not waive work-product protection because of the disclosure of the disputed information to senior management personnel who attended the meeting of the board of directors. Disclosure to them did not substantially increase the likelihood that the protected content would be revealed to an adverse party. Accordingly, we hold that Sherwin-Williams did not waive the work-product protection because of the presence of the holders of three top-management positions at the board of directors' meeting.")

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

Chapter: 48.203

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: 48.203

Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *10 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "Communications between either Astellas [defendant] or outside counsel and employees of public relations firms Hill & Knowlton and Fleishman-Hillard are neither privileged nor protected work product. Astellas has not shown that communications with either firm were necessary, or at least highly useful, for the rendering of legal advice. Cavallaro v. United States, 284 F.3d 236, 247 (1st Cir. 2002). Rather, it appears that both Hill & Knowlton and Fleishman-Hillard provided Astellas with standard public relations services related to the filing and outcome of the citizen petition and any subsequent business or media fallout. Moreover, even if the firms provided public relations advice or documents bearing upon potential litigation over the citizen petition, such materials fall outside the scope of work-product protection, which is intended 'to provide a zone of privacy for strategizing about the conduct of litigation itself, not for strategizing about the effects of the litigation on the client's customers, the media, or on the public generally.' Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000).")

Case Date Jurisidction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 48.203

Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 436 (S.D.N.Y. 2013)
("No waiver occurs where work product is disclosed to public relations consultants who intend to keep the information in confidence")

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

Chapter: 48.203

Case Name: Devon IT, Inc. v. IBM Corp., Civ. A. No. 10 2899, 2012 U.S. Dist. LEXIS 166749, at *3 n.1 (E.D. Pa. Sept. 27, 2012)
(addressing a situation in which the defendant sent a subpoena to a litigation funding company's parent; quashing the subpoena, and finding that there had not been a waiver of privilege or work product protections; "Burford Group LLC is an outside consultant staffed by attorneys who evaluate a case to determine the feasibility of advancing financing to a party pursuing a claim which is expensive to litigate. Burford's indirect owners are Glenavy Capital LLC and Litigation Risk Solutions LLC. They are passive holding companies and have no direct relationship with Devon Plaintiffs (hereafter 'Devon') and apparently no involvement with this case other than through Buford."; "As part of the evaluation process, Devon shared confidential information with Buford, including legal memoranda, drafts of pleadings, motions, and briefs, and other filings on behalf of Devon. Documents selected by counsel for Devon were also sent. Finally, the documents were sent to Burford include communications and comments on draft agreements regarding the terms of potential financing. The documents were provided to Burford under the terms of a March 2010 Confidentiality, Common Interest and Non-Disclosure Agreement between Burford and Devon. In March 2011, a funding agreement was executed between a wholly owned subsidiary of Burford, Driftwood Investments, Ltd. and Devon."; "It is quite evident that the subpoenas seek the production of documents that were prepared by counsel for Devon in anticipation of and during litigation and are protected by the work-product doctrine. Litigation strategy, matters concerning merits of claims and defenses and damages would be revealed if the documents were produced. The matters directly involve the mental impressions of counsel and are protected from disclosure as work-product. Moreover, the production of the items subpoenaed would intrude upon attorney-client privilege under the 'common-interest' doctrine. The 'common-interest' doctrine protects communications between parties with a shared common interest in litigation strategy. . . . Here, Burford and Devon now have a common interest in the successful outcome of the litigation which otherwise Devon may not have been able to pursue without the financial assistance of Burford. The documents turned over to Burford were done so under a Confidentiality, Common Interest and Non-Disclosure Agreement. 'Common Interest Material' were specifically described in the Agreement in paragraph 1 as '. . . any Confidential Information that is the work product of qualified legal advisors and/or attorney work product, protected by the attorney-client privilege or any similar privilege in any jurisdiction . . .' Given these controlled conditions, there was no waiver of the attorney-client privilege or the work product doctrine and the Joint Motion of Plaintiffs will be granted.")

Case Date Jurisidction State Cite Checked
2012-09-27 Federal PA B 7/13

Chapter: 48.204

Case Name: United States v. Baker, Cause No. A-13-CR-346-SS, 2014 U.S. LEXIS 22528, at *5 (W.D. Tex. Feb. 21, 2014)
(holding that disclosing work product to auditor PWC did not waive the work product protection; "ArthroCare's [non-party] attorneys have apparently communicated some substance from some interviews to outside auditors at PricewaterhouseCoopers, but such disclosure 'does not necessarily undercut the adversary process' and therefore does not waive the protections of the work-product doctrine." (citation omitted))

Case Date Jurisidction State Cite Checked
2014-02-21 Federal TX B 7/14

Chapter: 48.204

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: 48.205

Case Name: Obeid v. La Mack, 14 Civ. 6498 (LTS) (HBP), 2016 U.S. Dist. LEXIS 170826 (S.D.N.Y. Dec. 9, 2016)
(holding that an investor in plaintiff's real estate project was outside privilege protection, and could not be a common interest participant; in contrast, holding that disclosing work product to the investor did not waive that protection; "[T]he Individual Defendants argue that work-product protection has been waived because '[d]isclosing work product to third parties such as Mr. Schmidt [the "largest individual equity investor" in plaintiff's real estate projects] increases the likelihood that this work product would end up in the hands of Plaintiff's adversaries. For example, had the Individual Defendants issued a subpoena to Mr. Schmidt asking for his communications with Plaintiff,' Schmidt would have had to disclose the communications . . . . However, carried to its logical conclusion, the Individual Defendants' argument would mean that disclosure of work product to anyone outside the attorney-client relationship would result in waiver, because anyone can be subpoenaed. Under such circumstances, the waiver rules applicable to the work-product doctrine would be identical to the waiver rules applicable to the attorney-client privilege. That is clearly not the law.")

Case Date Jurisidction State Cite Checked
2016-12-09 Federal NY

Chapter: 48.205

Case Name: Bloomingburg Jewish Education Center v. Village of Bloomingburg, 14-cv-7250 (KBF), 2016 U.S. Dist. LEXIS 35192 (S.D.N.Y. March 18, 2016)
(finding that defendant Town had not presented sufficient evidence to support privilege or work product protection for a communications between the Town and West End, described as "a public relations and communications strategy firm"; "Resolution of the privilege must be made on a document-by-document basis in light of the particular contents of each document. It is certainly the case that large swaths of responsive documents and communications in West End's possession do not constitute protected work product. . . . In the absence of any support for the assertion that any particular documents are privileged, the Court cannot rule that there are any documents in West End's possession as to which the work-product privilege applies."; "Thus, while the Town Defendants did not automatically waive the work-product privilege by sharing materials with West End, their failure to conduct the basic work (even at this late stage of discovery) necessary to allow the Court to consider the documents on a case-by-case basis justifies the determination that all documents and communications in West End's possession that are responsive to the subpoena must be disclosed immediately.")

Case Date Jurisidction State Cite Checked
2016-03-18 Federal NY

Chapter: 48.205

Case Name: United States v. Ocwen Loan Servicing, LLC, Case No. 4:12-CV-543, 2016 U.S. Dist. LEXIS 32967 (E.D. Tex. March 15, 2016)
("Additionally, the Court finds that the protected information was not waived by disclosure to the possible or actual litigation funders. Litigation funders have an inherent interest in maintaining the confidentiality of potential clients' information, therefore, Relators had an expectation that the information disclosed to the litigation funders would be treated as confidential. . . . Additionally, at least one court in this district has held that the presence of a written nondisclosure agreement preserves work product protection. . . . Relators assert that work product protection was not waived because '[n]o documents regarding the [] cases were exchanged with any actual or potential litigation funder before an agreement regarding non-disclosure was made with a litigation funder.'. . . Therefore, although the documents were disclosed to third parties, the disclosures did not constitute a waiver because they were disclosed subject to non-disclosure agreements, and thus, did not substantially increase the likelihood that an adversary would come into possession of the materials.")

Case Date Jurisidction State Cite Checked
2016-03-15 Federal TX
Comment:

key case


Chapter: 48.205

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: 48.205

Case Name: Ellis v. J.P. Morgan Chase & Co., Case No. 12-cv-03897-YGR (JCS), 2014 U.S. Dist. LEXIS 45681 (N.D. Cal. April 1, 2014)
(finding that defendant's disclosure of work product to vendors did not waive the work product protection; "Here, it is apparent that the Vendors are not Chase's adversaries. If anything, the Vendors are potential co-defendants, as discussed above. To the extent that Plaintiffs address the adversary issue, they argue only that the Vendors and Chase do not have a 'common interest,' except perhaps one that is commercial in nature. . . . In any event, the Court is not satisfied that the Vendors are adversaries such that Chase waived the work product privilege by sending them the 12/18 Letter.")

Case Date Jurisidction State Cite Checked
2014-04-01 Federal CA

Chapter: 48.205

Case Name: U.S. Nutraceuticals LLC v. Cyanotech Corp., Case No. 5:12-cv-366-Oc-10PRL, 2014 U.S. Dist. LEXIS 22739, at *9-10, *10 (M.D. Fla. Feb. 19, 2014)
("Plaintiffs argue that the opinion of counsel was 'freely disseminated in the fall of 2009 to [Defendants'] marketing agency, and from there to potential customers,' citing the Paladin Memo . . . . Plaintiffs contend that Defendants made absolutely no attempt to protect the confidentiality of its opinions of counsel, and that it could not be reasonably expected that future use of the information would be limited."; "Notably, Plaintiffs have not pointed to anything in the record that contradicts Defendants' assertions regarding the limited dissemination of the Darby Opinion, or Defendants' assertions that the Darby Opinion was disclosed under the terms of a confidentiality agreement. Accordingly, under the circumstances described above, the Court finds that Defendants did not waive the work product privilege with regard to the Darby Opinion.")

Case Date Jurisidction State Cite Checked
2014-02-19 Federal FL B 7/14

Chapter: 48.205

Case Name: Skynet Electronic Co. v. Flextronics International, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372 (N.D. Cal. Dec. 16, 2013)
January 29, 2014 (PRIVILEGE POINT)

"Northern District of California Decision Highlights Wisdom of Analyzing Both Privilege and Work Product Protection"

The attorney-client privilege provides absolute protection, but can be very difficult to create and easily lost. In contrast, work product protection can be overcome, but survives disclosure to friendly third parties.

In Skynet Electronic Co. v. Flextronics International, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372 (N.D. Cal. Dec. 16, 2013), Skynet disclosed a memorandum prepared by Andrews Kurth to a Taiwanese patent "attorney." Defendants claimed that Skynet waived any privilege protection, because Taiwanese patent "attorneys" are not actually lawyers. Id. At *4. The court found it unnecessary to deal with the privilege issue, because it concluded that the memorandum also deserved work product protection, which survived the disclosure. The court acknowledged that privilege protection "ordinarily ceases to exist if confidentiality is destroyed by voluntary disclosure to a third person." Id. At *9. However, disclosing work product to a third party "does not waive work-product immunity, unless it has substantially increased the opportunity for the adverse party to obtain the information." Id. The court found that disclosure to the Taiwanese patent "attorney" "did not make it substantially more likely that defendants would discover it." Id. At *10.

Although the attorney-client privilege provides absolute protection, its fragility makes it more vulnerable to waiver. For this and other reasons, clients and their lawyers should also consider the possible applicability of the very different but sometimes more advantageous work product protection.

Case Date Jurisidction State Cite Checked
2013-12-16 Federal CA
Comment:

key case


Chapter: 48.205

Case Name: Mondis Tech., Ltd. v. LG Elecs., Inc., Civ. A. No. 2:07-CV-565- c/w 2:08-CV-478-TJW, 2011 U.S. Dist. LEXIS 47807 (E.D. Tex. May 4, 2011)
(holding that disclosure of work product to a potential investor did not waive the work product protection)

Case Date Jurisidction State Cite Checked
2011-05-04 Federal TX B 7/13

Chapter: 48.302

Case Name: United States ex rel. Westrick v. Second Chance Body Armor, Inc., 288 F.R.D. 222, 226 (D.D.C. 2012)
(dealing with Plaintiff United States' request for documents from Defendant's non-testifying expert; finding that there had been no waiver because the non-testifying expert did not supply any information to the testifying expert; "Price's [testifying expert] Declaration supports these statements by Toyobo [defendant]. Price asserts that '[i]n forming [his] opinions in this case, [he] did not see, consider, or in any way rely upon any information from Mr. Murray [non-testifying expert].")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 9/13

Chapter: 48.303

Case Name: United States ex rel. Westrick v. Second Chance Body Armor, Inc., 288 F.R.D. 222, 226 (D.D.C. 2012)
(dealing with Plaintiff United States' request for documents from Defendant's non-testifying expert; finding that there had been no waiver because the non-testifying expert did not supply any information to the testifying expert; "In the instant case, Plaintiff has proffered nothing more than speculation to support its assertion that Price [testifying expert] relied upon information from Murray [non-testifying expert].")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 9/13

Chapter: 48.305

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 deter 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; "[T]he Court is skeptical of the proposition that waiver can be avoided by agreement with a government agency, for the cogent reasons explained by Judge Gardephe in Gruss v. Zwirn, 09-CV-6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 100012, 2013 WL 3481350, at *5-13 (S.D.N.Y. July 10, 2013), and former Judge Scheindlin in In re Initial Pub. Offering Sec. Litig., 249 F.R.D. 457, 461-67 (S.D.N.Y. 2008). But the Court need not decide categorically whether confidentiality agreements can ever protect work product that is shared voluntarily with a government agency because, at most, they are 'just one of several factors to be considered,' and they are not enough to carry the day here. . . . First, the materials at issue here were 'generated by counsel during a government investigation, with the specific intent to dissuade the government from bringing suit.'"; "Second, three of the four Defendants opposing Plaintiffs' requests do not even appear to have 'entered into an explicit agreement that the [the agency] will maintain the confidentiality of the disclosed materials.'"; "Defendants fail to establish that the materials at issue here are of a similar nature -- that is, akin to internal analyses of data already provided to Plaintiffs and, thus, analyses that Plaintiffs could either conduct themselves or obtain through expert discovery. Instead, the materials at issue appear to be advocacy materials produced by counsel in an effort to dissuade the government from bringing suit; it goes without saying that, even with the underlying data, Plaintiffs cannot know, let alone reconstruct on their own, what Defendants said in those materials.")

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

Chapter: 48.306

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 deter 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; "[T]he Court is skeptical of the proposition that waiver can be avoided by agreement with a government agency, for the cogent reasons explained by Judge Gardephe in Gruss v. Zwirn, 09-CV-6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 100012, 2013 WL 3481350, at *5-13 (S.D.N.Y. July 10, 2013), and former Judge Scheindlin in In re Initial Pub. Offering Sec. Litig., 249 F.R.D. 457, 461-67 (S.D.N.Y. 2008). But the Court need not decide categorically whether confidentiality agreements can ever protect work product that is shared voluntarily with a government agency because, at most, they are 'just one of several factors to be considered,' and they are not enough to carry the day here. . . . First, the materials at issue here were 'generated by counsel during a government investigation, with the specific intent to dissuade the government from bringing suit.'"; "Second, three of the four Defendants opposing Plaintiffs' requests do not even appear to have 'entered into an explicit agreement that the [the agency] will maintain the confidentiality of the disclosed materials.'"; "Defendants fail to establish that the materials at issue here are of a similar nature -- that is, akin to internal analyses of data already provided to Plaintiffs and, thus, analyses that Plaintiffs could either conduct themselves or obtain through expert discovery. Instead, the materials at issue appear to be advocacy materials produced by counsel in an effort to dissuade the government from bringing suit; it goes without saying that, even with the underlying data, Plaintiffs cannot know, let alone reconstruct on their own, what Defendants said in those materials.")

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

Chapter: 48.306

Case Name: United States v. Zhu, 13 Cr. 761, 2014 U.S. Dist. LEXIS 154034 (S.D.N.Y. Oct. 14, 2014)
(including in an ambiguous statement that providing information to the government did not trigger a waiver; "Zhu's argument that NYUMC [New York University Medical Center] waived its work product privilege by disclosing the privileged information to the Government with the possibility that the Government would then disclose such information to Zhu, a party opponent, is without merit. Zhu provides no basis for the contention that NYUMC must have known that the Government would necessarily disclose the contents of the interview to Zhu. Zhu alleges that, because NYUMC's counsel consists of at least one former federal prosecutor, NYUMC 'undoubtedly knew' that the Government would reveal to Zhu the substance of the interview. . . . Zhu provides no support for this claim, and the Court is not persuaded that NYUMC, by disclosing this information to the Government, 'used [the information] in such a way' that the information could 'end up in the hands of an adversary.'")

Case Date Jurisidction State Cite Checked
2014-10-14 Federal NY

Chapter: 48.306

Case Name: United States v. K-Mart, Case No. 3:12-cv-00881-MJR-PMF, 2014 U.S. Dist. LEXIS 73261 (S.D. Ill. May 29, 2014)
(holding that Kmart waived its privilege by providing documents to government agency, and rejecting a selective waiver argument; "The policy reasons for disallowing selective waiver in this case outweigh the reasons for allowing it. In the May 15 discovery dispute conference, K-Mart went to great lengths to emphasize that not allowing selective waiver under these circumstances would discourage corporate cooperation with government investigations. While increased cooperation with the government is most certainly a laudable end, this policy ground for permitting selective waiver has been repeatedly rejected. . . . Most pointedly, the attorney client privilege and work product doctrines do not exist to foster full and frank conversation with the government. . . . Rather, the chief purpose of attorney work product protection is to permit an attorney to prepare a client's case in confidence. . . . Disclosure of protected attorney work product is a strategic litigation decision.")

Case Date Jurisidction State Cite Checked
2014-05-29 Federal IL

Chapter: 48.306

Case Name: United States v. K-Mart, Case No. 3:12-cv-00881-MJR-PMF, 2014 U.S. Dist. LEXIS 73261 (S.D. Ill. May 29, 2014)
(holding that Kmart waived its privilege by providing documents to government agency, and rejecting a selective waiver argument; "K-Mart made a calculated decision to intentionally relinquish work product protection in order to obtain a strategic advantage in the 2009 OIG investigation. This disclosure occurred in California, which is part of the Ninth Circuit. The Ninth Circuit did not have a firm position on selective waiver in 2009 but has since rejected it. . . . The D.C. Circuit, where the OIG of HHS is headquartered, has long rejected selective waiver . . . As has almost every other circuit.")

Case Date Jurisidction State Cite Checked
2014-05-29 Federal IL

Chapter: 48.306

Case Name: Jane Doe No. 1 v. United States, No. 13-12923, 2014 U.S. App. LEXIS 7283 (11th Cir. April 18, 2014)
("The intervenors next contend that the correspondence falls under the work-product privilege, but the finding of the district court that the intervenors waived any privilege when they voluntarily sent the correspondence to the United States during the plea negotiations is not clearly erroneous. Disclosure of work-product materials to an adversary waives the work-product privilege. . . . Even if it shared the common goal of reaching a quick settlement, the United States was undoubtedly adverse to Epstein during its investigation of him for federal offenses, and the intervenors' disclosure of their work product waived any claim of privilege.")

Case Date Jurisidction State Cite Checked
2014-04-18 Federal

Chapter: 48.306

Case Name: Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 100012, at *16 (S.D.N.Y. July 10, 2013)
(rejecting the possibility of a selective waiver upon disclosing work product to the government; "The reasoning of the Diversified [Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1978)] court -- on which the selective waiver doctrine is premised -- has been uniformly rejected by the Courts of Appeal, including by the Second Circuit in In re Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir. 1993).")

Case Date Jurisidction State Cite Checked
2013-07-10 Federal NY B 4/14

Chapter: 48.306

Case Name: Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 100012, at *42 (S.D.N.Y. July 10, 2013)
(rejecting the possibility of a selective waiver upon disclosing work product to the government; "Excerpts of Defendants' attorneys' work product -- the interview notes and summaries -- were deliberately, voluntarily, and selectively disclosed to the SEC via the PowerPoint presentations. As a result, any work product protection associated with the factual portions of the interview notes and summaries was forfeited.")

Case Date Jurisidction State Cite Checked
2013-07-10 Federal NY B 4/14

Chapter: 48.306

Case Name: Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 100012, at *41 (S.D.N.Y. July 10, 2013
(rejecting the possibility of a selective waiver upon disclosing work product to the government; "As with the attorney-client privilege, waiver of work product protection can occur where a party discloses the substance of attorney work product to a government entity.")

Case Date Jurisidction State Cite Checked
2013-07-10 Federal NY B 4/14

Chapter: 48.306

Case Name: In re S3 LTD, No. 99-22531-S, 2000 WL 1239772, at *7 (Bankr. E.D. Va. Aug. 10, 2000)
(where a company in Chapter 11 bankruptcy hired a government contracts expert to assist it in a dispute with one of its major creditors, which it then settled and the bankrupt company later sought to lift a settlement-related protective order to disclose to government authorities what it alleged to be fraudulent billing of the government by the creditor; the creditor sought materials prepared by the expert, but the bankrupt company claimed that the materials were protected by the work product doctrine; discussing the interplay of Rule 26(b)(4)(B) (which allows discovery of a nontestifying expert "upon a showing of exceptional circumstances") and Rule 26(b)(3); explaining that Rule 26(b)(4) must be "narrowly construed in order to protect vigorously opinion work product"; holding that Rule 26(b)(4)(B) does not allow for the discovery of documents, but only permits interrogatories and depositions; finding that the consultant hired by the bankrupt company should also be deemed a non-testifying expert, so that the "substantial need" justifying discovery of nonopinion work product under Rule 26(b)(3) means that the creditor had also shown "exceptional circumstances" under Rule 26(b)(4)(B); "[t]hus, even if some or all of the Vander Schaaf Report [prepared by the consultant/non testifying expert] were not discoverable because of the work-product doctrine, MANCON [the creditor seeking the report] is not restricted from issuing interrogatories to Vander Schaaf or from deposing him in order to discover facts known or opinions held by the expert in conformity with Rule 26(b)(4)(B)"; holding that the portions of the report that are opinion work product would be protected from disclosure, except for the bankrupt company's action in providing the report to the Department of Defense, which waived the work product protection)

Case Date Jurisidction State Cite Checked
2000-08-10 Federal VA

Chapter: 48.307

Case Name: Alaska Elec. Pension Fund v. Bank of Am. Corp., 14-CV-7126 (JMF), 2016 U.S. Dist. LEXIS 158455 (S.D.N.Y. Nov. 16, 2016)
(analyzing but not reach any conclusions about whether disclosure to the CFTC waived work product protection; acknowledging the effect of specific statutes covering some disclosure to bank regulators; "Defendants' disclosures to the CFTC are more complicated."; "The Second Circuit addressed the question of whether 'disclosure of attorney work product in connection with a government investigation waives the privilege in later civil discovery' in In re Steinhardt Partners, L.P., 9 F.3d 230, 233 (2d Cir. 1993)."; "The Court agrees with that approach. Applying it here, many of the materials sought by Plaintiffs may well be shielded by the work-product doctrine, as Defendants represent that they entered into confidentiality or non-waiver agreements with the CFTC prior to producing any attorney work product . . ., and Defendants produced to Plaintiffs all the underlying transactional data. Nevertheless, for several reasons, it is premature to decide definitively the extent to which the work product doctrine shields the documents at issue from production. First, the Court will be in a better position to make that decision in the event that Plaintiffs narrow their discovery requests and the parties' disputes are more focused than they are now (perhaps aided by production of a privilege log). Second, and related, the propriety of withholding production may well turn on the particulars of the documents at issue – including, for example, whether they constitute work product that Plaintiffs themselves could replicate given the underlying data, as was the case in Natural Gas [In re Natural Gas Commodity Litigation, No. 03-CIV-6186 (VM) AJP), 2005 U.S. Dist. LEXIS 11950, 2005 WL 1457666 (S.D.N.Y. June 21, 2005)]; and whether the documents constitute fact work product or opinion word [sic] product. . . . whether and to what extent documents may be protected from production may ultimately turn on the particulars of Defendants' agreements with the CFTC, which do not appear to be part of the current record.")

Case Date Jurisidction State Cite Checked
2016-11-16 Federal NY

Chapter: 48.307

Case Name: Alaska Elec. Pension Fund v. Bank of Am. Corp., 14-CV-7126 (JMF), 2016 U.S. Dist. LEXIS 158455 (S.D.N.Y. Nov. 16, 2016)
(analyzing but not reach any conclusions about whether disclosure to the CFTC waived work product protection; acknowledging the effect of specific statutes covering some disclosure to bank regulators; "Defendants' disclosures to the CFTC are more complicated."; "The Second Circuit addressed the question of whether 'disclosure of attorney work product in connection with a government investigation waives the privilege in later civil discovery' in In re Steinhardt Partners, L.P., 9 F.3d 230, 233 (2d Cir. 1993)."; "The Court agrees with that approach. Applying it here, many of the materials sought by Plaintiffs may well be shielded by the work-product doctrine, as Defendants represent that they entered into confidentiality or non-waiver agreements with the CFTC prior to producing any attorney work product . . ., and Defendants produced to Plaintiffs all the underlying transactional data. Nevertheless, for several reasons, it is premature to decide definitively the extent to which the work product doctrine shields the documents at issue from production. First, the Court will be in a better position to make that decision in the event that Plaintiffs narrow their discovery requests and the parties' disputes are more focused than they are now (perhaps aided by production of a privilege log). Second, and related, the propriety of withholding production may well turn on the particulars of the documents at issue – including, for example, whether they constitute work product that Plaintiffs themselves could replicate given the underlying data, as was the case in Natural Gas [In re Natural Gas Commodity Litigation, No. 03-CIV-6186 (VM) AJP), 2005 U.S. Dist. LEXIS 11950, 2005 WL 1457666 (S.D.N.Y. June 21, 2005)]; and whether the documents constitute fact work product or opinion word [sic] product. . . . whether and to what extent documents may be protected from production may ultimately turn on the particulars of Defendants' agreements with the CFTC, which do not appear to be part of the current record.")

Case Date Jurisidction State Cite Checked
2016-11-16 Federal NY

Chapter: 48.307

Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2016 U.S. Dist. LEXIS 61371 (D. Nev. May 5, 2016)
(finding that Dynegy waived its privilege protection by giving the federal government documents about a gas price fixing investigation, but did not waive its work product protection; "[T]he court finds that Dynegy did not waive its work-product protection by producing its work product to investigating governmental agencies. The attorney-client and work-product privileges serve different purposes. The court agrees with the conclusion of Wright & Miller and those cases that have held that disclosure to third persons should not result in waiver of the work-product privilege unless it has substantially increased the opportunities for potential adversaries to obtain the materials."; "It is undisputed that Dynegy hired two outside law firms to investigate the government task force's allegations, to assist in complying with government information requests and to provide Dynegy with legal advice about potential litigation. The court is satisfied that the documents were produced 'because of' anticipated litigation and would not have been prepared in substantially similar form without the threat of litigation by the government.")

Case Date Jurisidction State Cite Checked
2016-05-05 Federal NV
Comment:

key case


Chapter: 48.307

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; "[W]hen disclosure of privileged material to the government agency is not in an adversary context, courts often recognize that the policy reasons for a waiver do not exist, and they conclude that no waiver was created."; "Therefore, determining whether NCL's production of the work-product statement to the port police waived the protection depends in part on whether the disclosure was compelled and, if not, the purpose of the disclosure (i.e., to help NCL itself or to assist the port police in a cooperative, non-adversarial effort in its investigation of others)."; "There is nothing in the record to suggest that NCL was in an adversarial relationship with the port police when it turned over a copy of the statement for which it claims work-product protection. Similarly, there is no evidence to suggest that NCL disclosed the document in order to escape or limit criminal prosecution. To the contrary, all the evidence suggests that NCL turned over the document in an effort to cooperate with law enforcement in an investigation of a third party (i.e., the passenger who allegedly attacked the plaintiff)."; "Although there appears to have been no confidentiality promise made by the port police, the fundamental factor here is that there was no adversarial relationship. If the alleged attacker had been a crewmember, then NCL's motivation may have been different and the nature of the relationship with port police likely would have been different as well."; "In the instant case, the port police were not adversaries, and NCL's decision to turn over a document to assist law enforcement without a self-centered motivation to enhance its own potential exposure in the criminal investigation does not waive work-product protection.")

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

key case


Chapter: 48.308

Case Name: In re Symbol Technologies, Inc. Sec. Litig., CV 05-3923 (DRH) (AKT), 2016 U.S. Dist. LEXIS 139200 (E.D.N.Y. Sept. 30, 2016)
(the work product doctrine protected documents created during a company's investigation of accounting problems; also holding that disclosure to the SEC did not waive the work product doctrine, because the SEC and the company had a common interest in complying with an earlier consent decree; "Although reasonable minds may differ, based on the facts of the instant case, the Court finds that Symbol and the SEC shared a common interest in ensuring that the terms of the consent judgment were adhered to and that Symbol's accounting practices, notwithstanding the third quarter revenue overstatement, were sound. This common interest -- which squarely aligns with the SEC's mandate of ensuring compliance with the nation's securities laws -- therefore overshadows any possible adversarial relationship that could be deemed to exist based upon the SEC's pending informal inquiry at the time. See id. (finding that despite the ongoing inquiry by the SEC into defendant's accounting practices, disclosure of privileged materials to the SEC did not waive work product privilege where defendant and SEC shared a common interest in ensuring that defendant's 'financial and accounting practices [were] 'clean as a hounds tooth."; "Having determined that the relationship between Symbol and the SEC was predominantly non-adversarial, the Court turns to whether the disclosure nevertheless "'substantially' or 'materially' increase[d] the likelihood that an adversary w[ould] obtain the information.' Bank of America, N.A., 212 F.R.D. at 170. As stated above, in the wake of Steinhardt [In re Steinhardt Partners, L.P., 9 F.3d at 236], 'district courts within the Second Circuit [ ] give the existence of confidentiality agreements weighty consideration in rendering selective waiver decisions."; "In the instant case, the record establishes that on November 19, 2002, Symbol entered into a confidentiality agreement with both the SEC and U.S. Attorney's Office whereby Symbol agreed to produce certain confidential documents with the understanding that Symbol did 'not intend to waive the protection of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.'"; "Further, although Plaintiff makes a perfunctory waiver argument with respect to any disclosures made to the Independent Examiner, the Court finds Plaintiff's position unavailing."; "Based upon the evidence in the record, and in the absence of any briefing by the parties, the Court finds that although labeled as 'independent,' the examiner was, for all practical purposes, acting as an agent for the government with the primary purpose of ensuring that Symbol complied with the terms and conditions of the deferred prosecution agreement as well as the Final Consent Judgment.")

Case Date Jurisidction State Cite Checked
2016-09-30 Federal NY
Comment:

key case


Chapter: 48.308

Case Name: In re Symbol Technologies, Inc. Sec. Litig., CV 05-3923 (DRH) (AKT), 2016 U.S. Dist. LEXIS 139200 (E.D.N.Y. Sept. 30, 2016)
(holding that the work product doctrine protected documents created during a company's investigation of accounting problems; also holding that disclosure to the SEC did not waive the work product doctrine, because the SEC and the company had a common interest in complying with an earlier consent decree; "In March 2002, after learning of the investigations being pursued by both the U.S. Attorney's Office and the SEC, Symbol 'retained the law firm of Swidler Berlin Shereff Friedman, LLP . . . to conduct an internal investigation into Symbol's accounting and financial practices.' Id. The investigation, which was conducted with the assistance of a third-party forensic accounting team, involved 'more than 200 interviews and the review of hundreds of thousands of pages of documents and emails. The results of this investigation were shared with both the U.S. Attorney's Office and the SEC pursuant to a Confidentiality Agreement entered into by all parties in November 2002.'"; "On June 3, 2004, Symbol announced that it had 'resolved the investigation by the [U.S. Attorney's Office] relating to [its] past accounting practices by entering into a non-prosecution agreement with the [U.S. Attorney's Office].'"; "[O]n November 8, 2004, 'Symbol announced it was delaying the third-quarter 2004 10-Q filing as the company [ ] discovered certain discrepancies in the amount of inventory that affected third-quarter 2004 results. . . .'"; "Upon learning of the issues surrounding the release of its third quarter earnings, Symbol immediately commenced an internal investigation. . . . The internal investigation was led by James Langrock, Vice President of the internal audit group. . . . During the pendency of the internal investigation conducted by Symbol's audit group, outside counsel from Swidler was retained to conduct 'a confidential investigation of the issues surrounding the misreporting of inventory . . . for the purpose of determining the nature and cause of the incidents.'"; "Based upon the particular circumstances in this case, and in light of the fact that '[n]othing" in Rule 26(b)(3) states or suggests that documents prepared 'in anticipation of litigation' with the purpose of assisting in the making of a business decision do not fall within its scope,' Adlman, 134 F.3d at 1198-99, the Court finds that the documents at issue are protected by the work product privilege. . . . when it conducted the internal investigation into its 2004 third quarter earnings overstatement, Symbol had every conceivable reason to believe that once the issues were publicly disclosed, it could be facing the real prospect of additional shareholder suits as well as further investigations by both the SEC and the U.S. Attorney's Office. Indeed, such a specter was a very real possibility, particularly in light of the fact that barely five months prior to the 2004 revenue overstatement, Symbol had entered into a deferred prosecution agreement with the U.S. Attorney's Office as well as a consent judgment with the SEC in order to settle claims pertaining to previous accounting improprieties."; "To be sure, Symbol did have a business reason for engaging in its internal investigation. Mark Greenquist, Symbol's Chief Financial Officer, testified that 'the most important thing was to get the numbers right so that we could file the [10-]Q, but that wasn't necessarily the end of it because then after that I guess the lesson learned chart would demonstrate that we continued to look at like, okay, what happened, and therefore what could we do better to make sure that we avoided that in the future.'. . . In addition, Symbol referenced the internal investigation in its November 8, 2004 press release in which Chief Executive Officer, William Nuti stated that '[a]s part of our regular control procedures, we discovered certain discrepancies in the amount of inventory at a distributor as well as inventory on hand that affected our previously announced results . . . We've moved swiftly to ascertain the nature and extent of these discrepancies . . . Symbol is committed to ensuring that its financial statements are accurate and can be relied upon by our shareholders.' Wernke Decl., Ex. O. Thus, Symbol had an interest in assuaging the public, its shareholders and the entire business community that it was acting in the manner expected of a responsible business entity. However, conducting an investigation for business purposes on the one hand and in anticipation of litigation on the other are not mutually exclusive, especially when viewed through the lens of the facts in the instant case. Indeed, in light of the factual circumstances attendant in the present case '[a]pplying a distinction between 'anticipation of litigation' and 'business purposes' is . . . artificial, unrealistic, and the line between [the two] is [therefore] essentially blurred to oblivion.'; "[T]he reasoning utilized in Kidder [In re Kidder Peabody, 168 F.R.D. 459, 473 (S.D.N.Y. 1996)] is inapplicable to the instant case inasmuch as the court relied on the 'principally or exclusively' standard that is no longer the appropriate test for determining whether the work-product privilege applies in the first instance.")

Case Date Jurisidction State Cite Checked
2016-09-30 Federal NY
Comment:

key case


Chapter: 48.310

Case Name: In re Symbol Technologies, Inc. Sec. Litig., CV 05-3923 (DRH) (AKT), 2016 U.S. Dist. LEXIS 139200 (E.D.N.Y. Sept. 30, 2016)
(the work product doctrine protected documents created during a company's investigation of accounting problems; also holding that disclosure to the SEC did not waive the work product doctrine, because the SEC and the company had a common interest in complying with an earlier consent decree; "Although the concept of 'selective waiver' has not been universally accepted . . . its application -- based upon the dicta in Steinhardt [In re Steinhardt Partners, L.P., 9 F.3d at 236] -- has been approved by courts in this Circuit."; "[C]ourts should engage in a 'case-by-case' analysis when faced with issues involving voluntary disclosure of privileged information to governmental authorities and whether such disclosure destroys the privilege as to third-parties.")

Case Date Jurisidction State Cite Checked
2016-09-30 Federal NY
Comment:

key case


Chapter: 48.310

Case Name: Roberts v. Clark County School District, Case No. 2:15-cv-00388-JAD-PAL, 2016 U.S. Dist. LEXIS 60995 (D. Nev. May 9, 2016)
(holding that disclosing privileged documents to the EEOC waived the attorney-client privilege, but not the work product doctrine; "Although CCSD has waived its attorney-client privilege on the advice of counsel and communications to Bradley and the EEOC which formed the basis for denying Roberts' use of the men's restroom, it has not waived its qualified work product protection. The work product protection serves a different purpose than the attorney-client privilege, and is intended to allow the client to retain the benefits of the lawyers' work without intrusion of opposing parties and their counsel. In reviewing the privileged document logs and documents themselves, very few of the documents qualify for work-product protection. However, the court finds CCSD has not waived its qualified work product immunity by disclosing some arguably attorney-client privileged documents to the EEOC during its investigation, or by asserting a good-faith defense to the claims in this complaint.")

Case Date Jurisidction State Cite Checked
2016-05-09 Federal NV

Chapter: 48.310

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; "[W]hen disclosure of privileged material to the government agency is not in an adversary context, courts often recognize that the policy reasons for a waiver do not exist, and they conclude that no waiver was created."; "Therefore, determining whether NCL's production of the work-product statement to the port police waived the protection depends in part on whether the disclosure was compelled and, if not, the purpose of the disclosure (i.e., to help NCL itself or to assist the port police in a cooperative, non-adversarial effort in its investigation of others)."; "There is nothing in the record to suggest that NCL was in an adversarial relationship with the port police when it turned over a copy of the statement for which it claims work-product protection. Similarly, there is no evidence to suggest that NCL disclosed the document in order to escape or limit criminal prosecution. To the contrary, all the evidence suggests that NCL turned over the document in an effort to cooperate with law enforcement in an investigation of a third party (i.e., the passenger who allegedly attacked the plaintiff)."; "Although there appears to have been no confidentiality promise made by the port police, the fundamental factor here is that there was no adversarial relationship. If the alleged attacker had been a crewmember, then NCL's motivation may have been different and the nature of the relationship with port police likely would have been different as well."; "In the instant case, the port police were not adversaries, and NCL's decision to turn over a document to assist law enforcement without a self-centered motivation to enhance its own potential exposure in the criminal investigation does not waive work-product protection.")

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

key case


Chapter: 48.310

Case Name: RMS of Wisconsin, Inc. v. Shea-Kiewit Joint Venture, Case No. 13-CV-1071, 2015 U.S. Dist. LEXIS 74425 (E.D. Wis. June 9, 2015)
(finding that disclosing work product to the FBI did not waive that protection; "The work-product doctrine is designed to serve the dual purposes of protecting an attorney's thought processes and mental impressions against disclosure and limiting the circumstances in which attorneys may piggyback on the fact-finding investigation of their more diligent counterparts."; "It is true that the work product protection may be waived. . . . As the court in Info. Res. V. Dun & Bradstreet Corp., 999 F. Supp. 591, 591-93 (S.D.N.Y. 1998) found, decisions involving waiver by production to governmental authorities fall 'roughly into three categories': (1) cases in which the government and the party asserting the work protect protection have a common interest; (2) cases in which the government and the party asserting the work protect protection are adversaries; and (3) cases in which the party asserting the work protect privilege voluntarily submitted the information to a government agency to incite it to attack the informant's adversary."; "The language of the correspondence indicates that RMS' attorney was responding to a request by the FBI, in cooperation with the FBI's investigation of the defendants. Thus, I must determine whether the letter falls under the first category, where the government and the party asserting work product have a common interest in litigation, either actual or prospective."; "The October 2012 letter indicates that the FBI was pursuing an investigation of the defendants on the same issue that RMS is now litigating in this suit. An active, ongoing investigation on this same issue evidences that RMS and the FBI's interests were aligned. . . . I find that RMS did not waive work product protections by its disclosure of the document to the FBI. As such, the defendants' motion to compel is denied.")

Case Date Jurisidction State Cite Checked
2015-06-09 Federal WI key case

Chapter: 48.310

Case Name: Pellegrino v. United States Trans. Sec. Administration, Civ. A. No. 09-5505, 2015 U.S. Dist. 59096 (E.D. Pa. May 6, 2015)
(holding that two government agencies shared a common interest; "'These communications did not waive the protection of the work product doctrine because the TSA attorneys and the local prosecutors shared a common legal interest.'")

Case Date Jurisidction State Cite Checked
2015-05-06 Federal PA

Chapter: 48.310

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: 48.310

Case Name: E.I. DuPont De Nemours & Co. v. Kolon Indus., Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *13-14 (E.D. Va. Apr. 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; "Kolon cites a line of cases from district courts in the Second Circuit in which work product protection was found to have been waived by a plaintiff's 'voluntary submission of material to a government agency to incite it to attack the informant's adversary.' Info. Res. v. Dun & Bradstreet Corp., 999 F. Supp. 591, 593 (S.D.N.Y. 1998); see also Three Crown Ltd. P'ship v. Salomon Bros., 1993 U.S. Dist. LEXIS 9995, at *6 (S.D.N.Y. July 21, 1993) ('[T]he Court will allow liberal discovery of statements made or documents submitted to a governmental agency prior to the initiation of an investigation of any defendant in this litigation concerning the subject matter of this litigation.') (emphasis added). However, later cases in that same district have differentiated 'offensive use' (as Kolon characterizes it) of privileged materials to initiate an action, from use of privileged materials to assist with an already initiated action, finding the latter usage not to waive the privilege. See, e.g., In re Visa Check/ MasterMoney Antitrust Litig., 190 F.R.D. 309, 315 n.4 (E.D.N.Y. 2000) (distinguishing Information Resources, in which no government agency had committed to join its interest with that of the discloser at the time of the disclosure, from Visa, in which the government and private plaintiff already had common antitrust concerns at the time of the disclosure), abrogated on other grounds by In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 42 (2d Cir. 2006).")

Case Date Jurisidction State Cite Checked
2010-04-13 Federal VA B 3/16

Chapter: 48.310

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 *24-25 (E.D. Va. April 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; "[W]hile DuPont may well have precipitated the federal investigation of Mitchell, its ex employee, none of the communications it now seeks to protect were made for the purposes of initiating an investigation, but rather were made in connection with an investigation that the government already had begun undertaking. And, although there is not complete identity of interest between DuPont and the government in the cases (United States v. Mitchell differs in many obvious respects from DuPont v. Kolon), there was substantial overlap such that DuPont's confidential sharing of information with the government would be of great value to both parties. And, the fundamental undertaking by DuPont and the government was to determine the extent of the industrial of the industrial espionage and redress it."; "Although DuPont failed to include language in many of its email communications that the information was intended to remain privileged, given the confidential nature of government investigations, as exemplified in the law firm letter sent or dated June 1, 2007, it was reasonable for DuPont to act on the belief that the information would not be subject to disclosure by the government." (footnote omitted); "[I]t is difficult to see how the government could have conducted its case without DuPont's assistance. And, there is no reason why DuPont, in providing such assistance, should lose work product protection for information it provided to the government respecting its own plans for litigation against a party implicated in the investigation. That DuPont achieved a commercial benefit from the investigation does not undermine the fact that DuPont had a right, and, in some sense, an obligation, to report Mitchell's suspicious activity; his subsequent conviction underscores the legitimacy of DuPont's concerns.")

Case Date Jurisidction State Cite Checked
2010-04-12 Federal VA

Chapter: 48.311

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 *24-25 (E.D. Va. April 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; "[W]hile DuPont may well have precipitated the federal investigation of Mitchell, its ex employee, none of the communications it now seeks to protect were made for the purposes of initiating an investigation, but rather were made in connection with an investigation that the government already had begun undertaking. And, although there is not complete identity of interest between DuPont and the government in the cases (United States v. Mitchell differs in many obvious respects from DuPont v. Kolon), there was substantial overlap such that DuPont's confidential sharing of information with the government would be of great value to both parties. And, the fundamental undertaking by DuPont and the government was to determine the extent of the industrial of the industrial espionage and redress it."; "Although DuPont failed to include language in many of its email communications that the information was intended to remain privileged, given the confidential nature of government investigations, as exemplified in the law firm letter sent or dated June 1, 2007, it was reasonable for DuPont to act on the belief that the information would not be subject to disclosure by the government." (footnote omitted); "[I]t is difficult to see how the government could have conducted its case without DuPont's assistance. And, there is no reason why DuPont, in providing such assistance, should lose work product protection for information it provided to the government respecting its own plans for litigation against a party implicated in the investigation. That DuPont achieved a commercial benefit from the investigation does not undermine the fact that DuPont had a right, and, in some sense, an obligation, to report Mitchell's suspicious activity; his subsequent conviction underscores the legitimacy of DuPont's concerns.")

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

Chapter: 48.311

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 *13-14 (E.D. Va. April 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; "Kolon cites a line of cases from district courts in the Second Circuit in which work product protection was found to have been waived by a plaintiff's 'voluntary submission of material to a government agency to incite it to attack the informant's adversary.' Info. Res. v. Dun & Bradstreet Corp., 999 F. Supp. 591, 593 (S.D.N.Y. 1998); see also Three Crown Ltd. P'ship v. Salomon Bros., 1993 U.S. Dist. LEXIS 9995, at *6 (S.D.N.Y. July 21, 1993) ('[T]he Court will allow liberal discovery of statements made or documents submitted to a governmental agency prior to the initiation of an investigation of any defendant in this litigation concerning the subject matter of this litigation.') (emphasis added). However, later cases in that same district have differentiated 'offensive use' (as Kolon characterizes it) of privileged materials to initiate an action, from use of privileged materials to assist with an already initiated action, finding the latter usage not to waive the privilege. See, e.g., In re Visa Check/ MasterMoney Antitrust Litig., 190 F.R.D. 309, 315 n.4 (E.D.N.Y. 2000) (distinguishing Information Resources, in which no government agency had committed to join its interest with that of the discloser at the time of the disclosure, from Visa, in which the government and private plaintiff already had common antitrust concerns at the time of the disclosure), abrogated on other grounds by In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 42 (2d Cir. 2006).")

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

Chapter: 48.312

Case Name: Menasha Corp. v. United States DOJ, 707 F.3d 846, 849, 850, 851 (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; "[T]he members of the Justice Department team communicate with each other in regard to the case, and often the communication takes the form of an exchange of memos and emails between team lawyers drawn from the two litigation sections. Menasha describes the sections as adversaries, as if one were a U.S. Attorney's Office (the enforcement section) and the other a white-collar criminal defense firm (the defense section), and argues that therefore the memos and emails exchanged between the sections concerning the Superfund litigation have been shared between adverse parties, resulting in a forfeiture of the Justice Department's attorney work product privilege."; "Menasha's argument is simple: the enforcement and defense sections are adversaries; communications between adversaries are not privileged."; "The general counsel would decide. The fact that he would be choosing between adversaries within the company --adversaries by virtue of differences in role and perspective -- would not entitle the plaintiff's malpractice lawyer to information exchanged among the defendant's battling subordinate lawyers: information about litigating strategy, about the strengths and weaknesses of the client's and adversary's cases, about possible terms of settlement -- kinds of information that the work product privilege shields from an adversary. The Justice Department is entitled to the same treatment as the private company in our example because it enjoys the same common law privileges as private litigants enjoy.")

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

Chapter: 48.402

Case Name: Herrera v. Union Pacific Railroad Co., 8:15CV426, 2017 U.S. Dist. LEXIS 61787 (D. Neb. April 24, 2017)
(holding that the plaintiff waived work product protection for an audio tape interview of a defendant's employee by using statements from the interview; "Here, by openly using the interview summaries at the depositions, Plaintiff voluntarily disclosed contents of his interview with the Union Pacific employee witnesses. To the extent those summaries are work product, Plaintiff voluntarily waived that protection. The more difficult question is whether as to the underlying audio recordings, the work product protection has also been waived."; "Under ordinary circumstances the court would conduct an in camera review of the audio recordings to determine what, if any, work product protection attached to the questions and the witnesses' respective answers. . . . However, the raw audio in this case was deleted by Plaintiff's representative and it cannot be reviewed by the court."; "Assuming the witnesses' answers contained nothing more than a factual recitation of the events, the audio recorded answers would likely be subject to disclosure. . . . But without hearing the audio or reviewing a transcript of the interview, the court cannot determine whether Plaintiff's counsel's questions would be subject to the work product waiver. Counsel's questions of witnesses are often inexorably intertwined with his thought process and mental impressions, pushing that information into the category of opinion work product -- which enjoys almost absolute immunity."; "Since the audio recordings no longer exist, the court must determine what, if any, remedy is appropriate at this stage in the litigation."; "The witnesses each testified at their respective depositions that they had a chance to review the narrative summaries, make changes to them, and affirm that the statements were 'true to the best of [their] knowledge' and they offered no changes at their depositions."; "The Defendant seeks the audio recordings to determine in what manner, if any, Plaintiff's representative's questions may have impacted the witness' answers. By seeking this information, Defendant may be seeking the mental impressions and thought processes of the questioner, which clearly falls into the category of opinion work product. Even if the raw audio were still available, the court has serious questions about whether Defendant would be granted access to the questions asked by Plaintiff's counsel's representative during the interview.")

Case Date Jurisidction State Cite Checked
2017-04-24 Federal NE

Chapter: 48.402

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: 48.402

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: 48.402

Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551 (N.D. Cal. May 6, 2016)
(finding that plaintiffs did not waive work product protection for the identity of confidential witnesses by disclosing some communications with them in the complaint; "Plaintiffs did not disclose actual statements or communications beyond the statements included in the complaint; including the statements in the complaint cannot be deemed waiver or there would be no point to using confidential witnesses.")

Case Date Jurisidction State Cite Checked
2016-05-06 Federal CA

Chapter: 48.402

Case Name: BNP Paribas v. Bank of N.Y. Trust Co., N.A., No. 11 Civ. 350 (PGG) (HBP), 2013 U.S. Dist. LEXIS 79180, at *15, *16-17, *18, *19-20, *20-21 (S.D.N.Y. June 5, 2013)
("In general, the documents are extremely relevant to an understanding of how the MBIA [insurance company] Letter came into existence, and a fact finder could conclude that the origin of the MBIA Letter has a substantial impact on the weight to be accorded the MBIA Letter."; "The communications between counsel and client are primarily in the nature of status reports, describing events occurring in the litigation and events comprising trial preparation."; "Although I have not found any case containing a universal definition of testimonial use, the cases seem to suggest that testimonial use of a statement or document occurs when its contents are asserted for the truth of the matter asserted therein."; "Paribas has affirmatively used the MBIA letter as evidence of the correctness of its interpretation of the manner in which insurance proceeds should be distributed. . . . Given Paribas' affirmative conduct in putting the MBIA Letter before the Court and Judge Gardephe's actual reliance on it, I conclude that Paribas has made testimonial use of the MBIA Letter."; "Having made testimonial use of the MBIA Letter, I conclude that Paribas has waived work-product protection with respect to the documents in issue except for (1) the opinion work-product identified above and (2) drafts of the amended complaint. Paribas proffers the MBIA Letter as independent corroboration of the correctness of its position, and the documents in issue could bear substantially on the weight to be attributed to the MBIA Letter. To permit Paribas to rely on the MBIA Letter while withholding evidence concerning its origin creates a serious risk of leaving the fact finder with a misimpression concerning how and why the MBIA Letter came into existence. As a matter of fairness, I conclude that non-opinion work-product concerning the MBIA Letter should be produced.")

Case Date Jurisidction State Cite Checked
2013-06-05 Federal NY B 4/14

Chapter: 48.402

Case Name: JPMorgan Chase & Co. v. Am. Century Co., C.A. No. 6875-VCN, 2013 Del. Ch. LEXIS 101, at *10-11 (Del. Ch. Apr. 18, 2013)
(finding that the work product doctrine protected JPMorgan's reserve figures, but that triggered an at issue waiver requiring production of the litigation reserve numbers; "Although the litigation reserves were eventually aggregated and disclosed publicly for an important business purpose, the work product privilege is not destroyed for that reason. Indeed, even if J.P. Morgan had disclosed the litigation reserve numbers for the arbitration claim to a third party -- which it avers it has not -- that disclosure would not necessarily preclude work product protection." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-04-18 State DE B 3/14

Chapter: 48.402

Case Name: SEC v. Cuban, Civ. A. No. 3:08-CV-2050-D, 2013 U.S. Dist. LEXIS 37167, at *21, *22 (N.D. Tex. Mar. 15, 2013)
(concluding that Mark Cuban could not overcome the SEC's work product protection for interview notes prepared one year before testimony that was available to Cuban; "Cuban maintains that the SEC waived the work-product protection because the publicly-released OIG report cites the contents of testimony from the exhibits. He relies on cases finding waiver where parts of privileged testimony were disclosed for tactical purposes in the context of litigation."; "The OIG report's use of the privileged testimony does not present the risk of unfair tactical advantage that generally accompanies selective disclosure of privileged testimony during litigation. . . . The OIG is not a party to this litigation, and the report was not completed for litigation purposes.")

Case Date Jurisidction State Cite Checked
2013-03-15 Federal TX B 3/14

Chapter: 48.402

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: 48.402

Case Name: Koninklijke Philips Elects. N.V. v. Zoll Med. Corp., Civ. No. 10 11041 NMG, 2013 U.S. Dist. LEXIS 28862, at *8 (D. Mass. Mar. 4, 2013)
("ZOLL has cited no cases -- and the Court is aware of none -- concluding that a party may incorporate work product into a publicly filed document (whether 'evidence' or not), and then decline to produce that same work product based on a privilege claim.")

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

Chapter: 48.402

Case Name: Belmont Holdings Corp. v. SunTrust Banks, Inc., 1:09 cv 1185 WSD, 2012 U.S. Dist. LEXIS 181853, at *13 (N.D. Ga. Nov. 19, 2012)
("[A]ssuming the communications between Torres, Worms, and Plaintiff's counsel were protected, the Court finds that Plaintiff waived the protections provided by the work-product doctrine and attorney-client privilege regarding their investigators' knowledge and notes by intentionally and selectively introducing testimony by Torres and Worms in their pleadings during this litigation regarding (i) how the information in the Amended Complaint was collected, (ii) how it was communicated to Plaintiff's counsel, and (iii) what Plaintiff's investigators communicated to Plaintiff's counsel before the Amended Complaint was drafted.")

Case Date Jurisidction State Cite Checked
2012-11-19 Federal GA B 9/13

Chapter: 48.402

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 606, 607 (E.D. Va. 2010)
("As DuPont observes, if it based the press release solely on public information, then no privileged material was disclosed, and no waiver could occur."; "However, the record refutes the contention that the sentence at issue was based only on the four public documents from the Mitchell criminal case."; "Of course, the burden rests with DuPont, the party asserting privilege, to prove all elements necessary to invoke the work product privilege, including that privileged information was not revealed."; "[C]onsidering the record as a whole, it is more likely than not that the statement about Kolon's purpose was based on some work product and on the Mitchell case documents."; "Thus, on this record it is appropriate to conclude that, by making the statement at issue in the press release, DuPont has waived the work product protection respecting the factual basis for the statement in the press release.")

Case Date Jurisidction State Cite Checked
2010-01-01 Federal VA

Chapter: 48.402

Case Name: Wells v. Liddy, 37 F. App'x 53, 65 (4th Cir. 2002)
(explaining that "unlike the attorney client privilege . . . the work-product privilege is not waived by mere disclosure, but instead by making 'testimonial use' of the protected material"; finding that Liddy had disclosed "confidential communications between him and his lawyers" to support his motion for summary judgment, which amounts to "testimonial material" and thus causes the subject matter waiver)

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

Chapter: 48.402

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: 48.402

Case Name: In re S<3> LTD., 252 B.R. 355, 365 (E.D. Va. 2000)
("One way in which the work-product privilege may be waived is when the party asserting the privilege makes testimonial use of the work product. See Nobles, 422 U.S. at 239 n.14; In re Martin Marietta, 856 F.2d at 624.")

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

Chapter: 48.403

Case Name: Townsend v. Nestle Healthcare Nutrition, Corp., Case No. 3:15-cv-06824, 2016 U.S. Dist. LEXIS 53918 (S.D.W. Va. April 22, 2016)
("Here, Tweel insists that the settlement evaluation and letters to insurance adjusters are opinion work product. While that may be so, Tweel's voluntary disclosure of his mental impressions, opinions, or legal theories to a potentially adverse party (the insurance company) waived any work product protection.")

Case Date Jurisidction State Cite Checked
2016-04-22 Federal WV

Chapter: 48.403

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("Because work-product protection is designed to protect an attorney's trial preparation and mental processes from discovery by an adversary, voluntary disclosure to an adversary almost invariably constitutes waiver. . . . The focus however is not on whether the disclosure was voluntary, but on whether the information was disclosed to an adversary.")

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

Chapter: 48.403

Case Name: Elbert v. C.R. Bard, Inc., Civ. A. No. 12-01253, 2014 U.S. Dist. LEXIS 57073 (E.D. Pa. April 24, 2014)
("Work-product protection is waived when a client voluntarily discloses the protected documents to one's adversaries.")

Case Date Jurisidction State Cite Checked
2014-04-24 Federal PA

Chapter: 48.403

Case Name: United States v. Martoma, No. 12 Cr. 973 (PGG), 2014 U.S. Dist. LEXIS 22149, at *6, *8, *10, *11 (S.D.N.Y. Jan. 1, 2014)
(holding that a doctor waived fact and opinion work product protection for documents contained on a computer that he returned to a university that was at that time an adversary; "[I]n determining whether a disclosure results in a waiver of work product protection, courts first consider whether the material at issue was disclosed to an adversary."; "In returning electronic devices to the University that contained alleged work product material, Dr. Gilman waived whatever work product protection might otherwise exist with respect to the materials stored on these devices."; "The scope of the waiver extends to both fact work product and opinion work product. Although opinion work product is generally entitled to greater protection, the Second Circuit has held that voluntary disclosure of work product to an adversary waives the protections of the work product doctrine, including as to opinion work product material." (footnote omitted); "Numerous district courts in this Circuit have likewise concluded that the voluntary production of work product to an adversary waives work product protection, both as to fact and opinion work product.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal NY B 5/14

Chapter: 48.405

Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779 (N.D. Ill. Jan. 6, 2014)
March 12, 2014 (PRIVILEGE POINT)

"Northern District of Illinois Analyzes Privilege and Work Product Issues Involving Litigation Funding"

Large companies increasingly turn to litigation funding as a means of financing commercial litigation. Only a few decisions have dealt with the privilege and work product waiver impact of companies disclosing protected documents to potential funders and the ultimately chosen funder.

In Miller UK Ltd. V. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779 (N.D. Ill. Jan. 6, 2014), the Northern District of Illinois issued an extensive opinion on these issues. After finding that litigation funding does not violate Illinois champerty or maintenance doctrines, the court held as follows: (1) the "deal documents" between the company and the ultimately chosen funder were irrelevant and therefore not discoverable; (2) the company waived attorney-client privilege protection for any materials shared with "any actual or prospective funders" – rejecting the company's common interest doctrine argument after concluding that "[a] shared rooting interest in the 'successful outcome of a case' . . . Is not a common legal interest"; and (3) the company also waived its separate work product protection for any work product that it shared with prospective funders – "except those with which it had a confidentiality agreement." Id. At *33, *46-48, *72. The court noted "it appears that [the company] took protective measure with some but perhaps not all prospective funders." Id. At *71-72.

Companies communicating with prospective litigation funders must remember the fragility of the attorney-client privilege and the importance of confidentiality agreements when disclosing work product to any third party.

Case Date Jurisidction State Cite Checked
2014-01-06 Federal IL
Comment:

key case


Chapter: 48.405

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: 48.407

Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
December 2, 2015 (PRIVILEGE POINT)

"Decision Highlights a Key Difference Between Attorney-Client Privilege and Work Product Doctrine Protection"

The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege. This distinction affects the impact of third parties' participation, and disclosure of protected communications or documents to third parties.

In Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015), the court dealt with plaintiff's communications with his lawyer — in the plaintiff's father-in-law's presence. The court found that the father-in-law's participation rendered the privilege unavailable — holding that the father-in-law "was not necessary to Plaintiff's communications with his counsel and [therefore] does not fall within the privilege." Id. at *6. In addressing the work product doctrine, the court applied the universal rule that "unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person." Id. at *10. Because the father-in-law's "interests are aligned with Plaintiff's," disclosing work product to the father-in-law did not waive that separate protection. Id. at *11. In fact, the court concluded that the plaintiff's father-in-law could himself prepare protected work product under Fed. R. Civ. P. Rule 26(b)(3)(A) — which can cover documents prepared in anticipation of litigation "for" a party (such as the plaintiff). Id. at *7.

The attorney-client privilege and the work product doctrine apply in dramatically different ways in the context of friendly third parties — who are generally outside privilege protection but inside work product protection, and who, even themselves, can create protected work product. Corporate lawyers should remember these rules when considering their corporate clients' friendly third parties such as accountants, consultants, or other agents.

Case Date Jurisidction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 48.407

Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711, at *3, *4-5, *5-6, *6, *8, *9-10, *11 (D. Ariz. Sept. 29, 2015)
(holding that the attorney-client privilege protection did not cover communications between the plaintiff and his lawyer in the presence of the plaintiff's father-in-law, and that the plaintiff's disclosure of work product to the father-in-law did not waive that protection; also holding that the father-in-law could create protected work product; "Plaintiff's memorandum and the communications reviewed in camera make clear that Mr. Prussin is a friend of Plaintiff's, as well as his father-in-law, and an individual from whom Plaintiff seeks counsel. The submissions also make clear that Mr. Prussin did discuss litigation strategy with Plaintiff and his counsel. The Court cannot conclude, however, that this relationship brings Mr. Prussin within the attorney-client privilege."; "The court in Evans [United States v. Evans, 113 F.3d 1457 (7th Cir. 1997)] held that the presence of the defendant's friend, Holden, in communications with attorneys, resulted in waiver of the attorney-client privilege even though Holden was there to provide support and advice, to help locate a suitable criminal defense attorney, and was himself a lawyer."; "Plaintiff relies on Benedict v. Amaducci, No. 92-cv-05239-KMW, 1995 U.S. Dist. LEXIS 573, 1995 WL 23555 (S.D.N.Y. Jan. 20, 1995), in which a plaintiff informally retained a close friend with financial expertise to act as a financial advisor and assist in preparing plaintiff for litigation. 1995 U.S. Dist. LEXIS 573, [WL] at *1. The court found that the advisor became the functional equivalent of an independent contractor, and eventually entered into an oral agreement to receive compensation for his services. Id. The court held that the privilege protected only 'those communications involving [the advisor] when he was acting as plaintiffs' representative with respect to litigation, impending or pending.' 1995 U.S. Dist. LEXIS 573, [WL] at *2."; "Mr. Prussin is more like the friend of Evans than the friend in Benedict. The Court cannot conclude that Mr. Prussin acted as an independent contractor. Plaintiff has not identified any agreement that Mr. Prussin act in that capacity or be paid for his services. Mr. Prussin's actions were much like those of Holden in the Evans case -- a friend helping to arrange counsel, providing support, and participating in attorney-client communications. As in Evans, the Court concludes that Mr. Prussin was not necessary to Plaintiff's communications with his counsel and does not fall within the privilege."; "The work product protection applies not only to emails written by Mr. Prussin to Plaintiff and his counsel, but also to emails written to Plaintiff alone, so long as they were written in anticipation of litigation."; "The Court also concludes that emails written by Plaintiff and his counsel in anticipation of litigation constitute work product, and that they retain this protection even though they were shared with Mr. Prussin. As many courts have recognized, unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person."; "Mr. Prussin is closely allied with Plaintiff in this litigation. His interests are aligned with Plaintiff's. The Court cannot conclude that disclosure of work product to him substantially increased the opportunity for Defendants to obtain the information, or that it was otherwise inconsistent with the work product protection. The Court concludes, therefore, that the disclosure did not waive the protection.")

Case Date Jurisidction State Cite Checked
2015-09-29 Federal AZ B 7/16
Comment:

key case


Chapter: 48.407

Case Name: Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2015 U.S. Dist. LEXIS 132711 (D. Ariz. Sept. 29, 2015)
(holding that the attorney-client did not protect communications between the plaintiff and his lawyer in which the plaintiff's father-in-law participated, but that disclosing work product to the father-in-law did not waive that protection, and that the father-in-law could create protected work product; "The protection also applies, however, to documents prepared 'for' a party or his representative. Id. The list of persons in Rule 26(b)(3)(A) -- attorney, consultant, surety, indemnitor, insurer, or agent -- defines 'representative,' and thus identifies the persons 'by or for' whom work product may be prepared. Id. It does not limit the persons who can prepare work product 'for' a party or its representative."; "The work product protection applies not only to emails written by Mr. Prussin [Plaintiff's father-in-law] to Plaintiff and his counsel, but also to emails written to Plaintiff alone, so long as they were written in anticipation of litigation."; "The Court concludes that emails written by Mr. Prussin satisfy the requirements for work product protection. They were written to a party in this litigation in anticipation of litigation."; "The Court also concludes that emails written by Plaintiff and his counsel in anticipation of litigation constitute work product, and that they retain this protection even though they were shared with Mr. Prussin. As many courts have recognized, unlike the more sensitive attorney-client privilege, waiver of work product protection does not occur simply because a document is shared with a third person."; "Mr. Prussin is closely allied with Plaintiff in this litigation. His interests are aligned with Plaintiff's. The Court cannot conclude that disclosure of work product to him substantially increased the opportunity for Defendants to obtain the information, or that it was otherwise inconsistent with the work product protection. The Court concludes, therefore, that the disclosure did not waive the protection.")

Case Date Jurisidction State Cite Checked
2015-09-29 Federal AZ
Comment:

key case


Chapter: 48.408

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
Comment:

key case


Chapter: 48.408

Case Name: L.W. v. Lackawanna County, Pa., Civ. A. No. 3:14-CV-01610, 2015 U.S. Dist. 65103 (M.D. Pa. May 19, 2015)
("[A]t the discovery conference counsel for Defendants mentioned his intent to compel production of notes taken by Plaintiffs' counsel at a group meeting between Plaintiffs, Plaintiffs' counsel, and the two nonparty witnesses represented by Plaintiffs' counsel regarding issues 'closely related to [P]laintiffs' claims in the instant case against a common adversary-Lackawanna County' for the purpose of 'learn[ing] the facts of each potential claim.'"; "[T]o the extent Defendants claim that Plaintiffs waived the work-product privilege by organizing a group meeting between Plaintiffs and nonparty witnesses, Defendants have not met their burden of showing that Plaintiffs waived the work-product privilege, especially considering that such notes were kept confidential and not disseminated amongst the Plaintiffs or nonparty witnesses.")

Case Date Jurisidction State Cite Checked
2015-05-19 Federal PA

Chapter: 48.408

Case Name: Broadrock Gas Svcs., LLC v. AIG Specialty Ins. Co., 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. March 2, 2015)
(analyzing privilege issues in a first party bad faith case; finding one insurance waived its privilege protection; but also finding that the disclosure did not waiver any work product protection by sending the privilege memorandum to another insurance company trying to sort out coverage; "In this case the disclosure to the carrier of the work product embodied in the Gates memorandum cannot be viewed as disclosure to an adversary. The work product was created in the context of the Town's suit against RIRRC, and it embodied an attorney's assessment of that litigation. Thus the pertinent adversary for waiver purposes is the Town, not the carrier. Moreover, disclosure to ACIS was not done in circumstances that suggested a likelihood of disclosure to the Town, or indeed any plausible scenario in which the document would ultimately be revealed to the Town. It was provided to the carrier for the evident purpose of supporting the insured's effort to encourage the carrier to cover a more substantial share of any impending damages exposure by RIRRC and presumably also to justify the defense costs for which the insured was seeking reimbursement.")

Case Date Jurisidction State Cite Checked
2015-03-02 Federal NY

Chapter: 48.408

Case Name: Amerisure Mutual Insurance Co. v. Crum & Forster Specialty Insurance Co., Case No. 2:12-cv-443-FtM-29CM, 2014 U.S. Dist. LEXIS 59265 (M.D. Fla. Apr. 29, 2014)
June 4, 2014 (PRIVILEGE POINT)

"Complicated Work Product Issues Arise in the Insurance Context"

Insurance disputes can trigger many attorney-client privilege and work product issues. The latter sometimes involve insurance companies' work product claims, and the waiver impact of insureds disclosing their work product to their insurance companies.

In Amerisure Mutual Insurance Co. v. Crum & Forster Specialty Insurance Co., Case No. 2:12-cv-443-FtM-29CM, 2014 U.S. Dist. LEXIS 59265 (M.D. Fla. Apr. 29, 2014), the court noted that insurance companies preliminarily assess first-party insurance claims in the ordinary course of their business, and therefore normally cannot claim work product protection. The court acknowledged that an insurance company's date of denial is "generally the boundary between documents that are generated under the work product doctrine and those discoverable as produced in the ordinary course of business." Id. at *7. However, the court then applied a more fact-intensive analysis in denying work product protection for documents the insurance company created after it had issued a reservation of rights letter -- but before the parties "reached an impasse as to their status and obligations under the insurance policies at issue." Id. at *10-11. About a month earlier, in Mine Safety Appliances Co. v. North River Insurance Co., No. 2:09-cv348, 2014 U.S. Dist. LEXIS 42771 (W.D. Pa. Mar. 31, 2014), an insured filed a bad faith claim against its insurance company. Among other things, the court held that the insured waived its work product protection through "disclosure of [the insured's] privileged work product with a carrier that has denied all tendered claims and has not sought to assist plaintiff in any manner in defending against the tendered or other underlying claims." Id. at *53.

Courts seem to stretch both privilege and work product concepts to protect communications between insureds and insurance companies when they are cooperating -- but disputes between insureds and insurance companies can create unexpected and often counterintuitive work product doctrine application and waiver risks.

Case Date Jurisidction State Cite Checked
2014-04-29 Federal FL
Comment:

key case


Chapter: 48.408

Case Name: Mine Safety Appliances Co. v. North River Insurance Co., No. 2:09-cv348, 2014 U.S. Dist. LEXIS 42771 (W.D. Pa. Mar. 31, 2014)
June 4, 2014 (PRIVILEGE POINT)

"Complicated Work Product Issues Arise in the Insurance Context"

Insurance disputes can trigger many attorney-client privilege and work product issues. The latter sometimes involve insurance companies' work product claims, and the waiver impact of insureds disclosing their work product to their insurance companies.

In Amerisure Mutual Insurance Co. v. Crum & Forster Specialty Insurance Co., Case No. 2:12-cv-443-FtM-29CM, 2014 U.S. Dist. LEXIS 59265 (M.D. Fla. Apr. 29, 2014), the court noted that insurance companies preliminarily assess first-party insurance claims in the ordinary course of their business, and therefore normally cannot claim work product protection. The court acknowledged that an insurance company's date of denial is "generally the boundary between documents that are generated under the work product doctrine and those discoverable as produced in the ordinary course of business." Id. at *7. However, the court then applied a more fact-intensive analysis in denying work product protection for documents the insurance company created after it had issued a reservation of rights letter -- but before the parties "reached an impasse as to their status and obligations under the insurance policies at issue." Id. at *10-11. About a month earlier, in Mine Safety Appliances Co. v. North River Insurance Co., No. 2:09-cv348, 2014 U.S. Dist. LEXIS 42771 (W.D. Pa. Mar. 31, 2014), an insured filed a bad faith claim against its insurance company. Among other things, the court held that the insured waived its work product protection through "disclosure of [the insured's] privileged work product with a carrier that has denied all tendered claims and has not sought to assist plaintiff in any manner in defending against the tendered or other underlying claims." Id. at *53.

Courts seem to stretch both privilege and work product concepts to protect communications between insureds and insurance companies when they are cooperating -- but disputes between insureds and insurance companies can create unexpected and often counterintuitive work product doctrine application and waiver risks.

Case Date Jurisidction State Cite Checked
2014-03-31 Federal PA
Comment:

key case


Chapter: 48.408

Case Name: Mine Safety Appliances Co. v. The North River Ins. Co., 2:09cv348, 2014 U.S. Dist. LEXIS 42771 (W.D. Pa. March 31, 2014)
(analyzing work product issues in a first party bad faith case based on a defendant insurance company's failure to pay for asbestos liability; finding that plaintiff's disclosure of work product to an insurance company which had denied claims waived the work product protection; "Plaintiff's disclosure of privileged work product with a carrier that has denied all tendered claims and has not sought to assist plaintiff in any manner in defending against the tendered or other underlying claims is not an action designed to further the work-product doctrine's underlying goals. It is the equivalent of releasing such information to an adversary in order to resolve a legal dispute, which is inimical to protecting and preserving the work product in order to maintain secrecy over the information, strategies and insight it provides.")

Case Date Jurisidction State Cite Checked
2014-03-31 Federal PA

Chapter: 48.408

Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *11 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "The results of paralegal Marilynn Whitney's monitoring of the generic tacrolimus market, conducted at the request of Wertjes [defendant's n-house lawyer] and outside counsel, is work product and remains protected even if shared with Goodman and Rich Wartel of Two Labs Marketing, a 'friendly party.'")

Case Date Jurisidction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 48.408

Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 437 (S.D.N.Y. 2013)
(analyzing a situation in which a defamation plaintiff's law firm had first worked with and later represented the plaintiff's public relations firm; holding that the PR agency was not within the privilege as the client's agent, and did not have a common interest with the plaintiff client; also holding that the PR agency could not create work product for the non-party, but that disclosing work product to the PR agency did not waive that protection; "Here, Egiazaryan had an expectation that BGR [public relations agency] would maintain the work product in confidence, as BGR agreed to a confidentiality clause in its retainer agreement. . . . Accordingly, Egiazaryan has carried his burden of showing that no waiver occurred by sharing work product with BGR.")

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

Chapter: 48.408

Case Name: Weitz & Luxenberg P.C. v. Georgia-Pacific LLC (In re N.Y.C. Asbestos Litig.), 966 N.Y.S.2d 420, 424, 425 (N.Y. App. Div. 2013)
("The results of the published studies commissioned by GP are relevant, and it cannot be seriously disputed that plaintiffs have a substantial need for the underlying data in the preparation of their cases. . . . Here, GP commissioned the studies in anticipation of litigation and has admitted that '[a]t an appropriate time and after their publication is complete, GP plans to introduce the results of the studies in litigation.'"; "[P]rinciples of fairness, as well as the spirit of the CMO [Case Management Order], require more complete disclosure, and GP should not be allowed to use its experts' conclusions as a sword by seeding the scientific literature with GP-funded studies, while at the same time using the privilege as a shield by withholding the underlying raw data that might be prone to scrutiny by the opposing party and that may affect the veracity of its experts' conclusions")

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

Chapter: 48.408

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 473 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "The co-client exception and common interest doctrine analysis governing the attorney-client privilege applies with equal force to the work product doctrine.")

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

Chapter: 48.408

Case Name: State v. Lead Indus. Assoc., 64 A.3d 1183, 1197 (R.I. 2013)
(holding that a Sherwin-Williams PowerPoint presentation to its board of directors about available insurance coverage deserved fact work product protection; finding that Sherwin-Williams did not waive the applicable work product protection by sharing the PowerPoint with a blogger and a LexisNexis representative in the company's efforts to find out how the PowerPoint had been leaked to the public; "There is no evidence that Sherwin-Williams ever intended to disclose exhibit no. 16. Indeed, the exhibit came into the state's hands only because -- unknown to Sherwin-Williams or its counsel -- an unauthorized source disclosed the document. In our opinion, the record clearly establishes that Sherwin-Williams intended to keep exhibit no. 16 confidential. Accordingly, we hold that Sherwin-Williams' disclosure to the blogger and the LexisNexis representative did not waive any work-product protection.")

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

Chapter: 48.502

Case Name: FastVDO, LLC v. AT&T Mobility LLC, Case No.: 16-CV-385-H (WVG), 2016 U.S. Dist. LEXIS 146373 (S.D. Cal. Oct. 21, 2016)
(knowing that a nondisclosure agreement between two companies prevented waiver of work product; "Plaintiff acquired the asserted patent from Boeing on December 17, 2014. . . . Prior to the acquisition of the asserted patent, Plaintiff entered into a non-disclosure agreement ('NDA') with Boeing, on May 14, 2014."; "Having reviewed the arguments provided in the Joint Motion, the documentation provided by Plaintiff for in camera review, the NDA, and other exhibits, the Court finds that Plaintiff has met its burden in demonstrating there was not a waiver of the work-product privilege. The disclosure of the Subject Documents between Plaintiff and Boeing did not increase the probability that a future adversarial party would discover the documents. This is evidenced by the NDA barring disclosure and Plaintiff's declaration that the Subject Documents have not been disclosed to any other parties. . . . The only disclosure of the Subject Documents was made between parties that were bound to maintain confidences as set forth in the NDA. Critically, the NDA was entered into on May 14, 2016, prior to the disclosure of the Subject Documents that were disclosed on October 9 and November 8, 2016, ensuring the parties were bound to maintain the confidence of the Subject Documents.")

Case Date Jurisidction State Cite Checked
2016-10-21 Federal CA

Chapter: 48.502

Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779 (N.D. Ill. Jan. 6, 2014)
March 12, 2014 (PRIVILEGE POINT)

"Northern District of Illinois Analyzes Privilege and Work Product Issues Involving Litigation Funding"

Large companies increasingly turn to litigation funding as a means of financing commercial litigation. Only a few decisions have dealt with the privilege and work product waiver impact of companies disclosing protected documents to potential funders and the ultimately chosen funder.

In Miller UK Ltd. V. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779 (N.D. Ill. Jan. 6, 2014), the Northern District of Illinois issued an extensive opinion on these issues. After finding that litigation funding does not violate Illinois champerty or maintenance doctrines, the court held as follows: (1) the "deal documents" between the company and the ultimately chosen funder were irrelevant and therefore not discoverable; (2) the company waived attorney-client privilege protection for any materials shared with "any actual or prospective funders" – rejecting the company's common interest doctrine argument after concluding that "[a] shared rooting interest in the 'successful outcome of a case' . . . Is not a common legal interest"; and (3) the company also waived its separate work product protection for any work product that it shared with prospective funders – "except those with which it had a confidentiality agreement." Id. At *33, *46-48, *72. The court noted "it appears that [the company] took protective measure with some but perhaps not all prospective funders." Id. At *71-72.

Companies communicating with prospective litigation funders must remember the fragility of the attorney-client privilege and the importance of confidentiality agreements when disclosing work product to any third party.

Case Date Jurisidction State Cite Checked
2014-01-06 Federal IL
Comment:

key case


Chapter: 48.502

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 473 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "The co-client exception and common interest doctrine analysis governing the attorney-client privilege applies with equal force to the work product doctrine.")

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

Chapter: 48.502

Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 437 (S.D.N.Y. 2013)
(analyzing a situation in which a defamation plaintiff's law firm had first worked with and later represented the plaintiff's public relations firm; holding that the PR agency was not within the privilege as the client's agent, and did not have a common interest with the plaintiff client; also holding that the PR agency could not create work product for the non-party, but that disclosing work product to the PR agency did not waive that protection; "Here, Egiazaryan had an expectation that BGR [public relations agency] would maintain the work product in confidence, as BGR agreed to a confidentiality clause in its retainer agreement. . . . Accordingly, Egiazaryan has carried his burden of showing that no waiver occurred by sharing work product with BGR.")

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

Chapter: 48.503

Case Name: Morley v. Square, Inc., Case No. 4:14cv172, Case No. 4:10cv2243 CNLJ Consolidated, 2015 U.S. Dist. LEXIS 155569 (E.D. Mo. Nov. 18, 2016)
(holding that disclosing work product to litigation funders did not waive that protection; "Plaintiffs maintain that they had either written or oral confidentiality agreements with the third parties at issue here. And, plaintiffs point out, litigation funders and banks have an inherent interest in maintaining the confidentiality of potential clients' information, so plaintiffs had an expectation that its documents would be treated as secret. . . . Other federal courts hold that the presence of a written nondisclosure agreement preserve work product protection, though their holdings do not address the absence of a written agreement. . . . This is the case here. Plaintiffs' declaration and supporting documents confirm that they had a reasonable basis for expecting confidentiality from the recipients of their work-product protected information.")

Case Date Jurisidction State Cite Checked
2016-11-18 Federal MO

Chapter: 48.503

Case Name: TC Ravenswood, LLC v. Nat'l Union Fire Ins. Co., Index No. 400759/11, 2013 N.Y. Slip Op. 31335(U), at 6 (N.Y. Sup. Ct. June 20, 2013)
(in a first party insurance case, finding that an insured's disclosure of protected documents to its insurance broker did not waive privilege or work product protection; "Marsh [plaintiff's insurance broker], acting as TransCanada's [plaintiff] agent, was expected to maintain these communications in confidence and it withheld subpoenaed documents at TransCanada's request. To the extent that the documents on the log are work product, that protection was not waived.")

Case Date Jurisidction State Cite Checked
2013-06-20 State NY B 4/14

Chapter: 48.503

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: 48.503

Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 436 (S.D.N.Y. 2013)
("No waiver occurs where work product is disclosed to public relations consultants who intend to keep the information in confidence")

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

Chapter: 48.602

Case Name: United States v. Dico, Inc., 4:10-cv-00503, 2017 U.S. Dist. LEXIS 52787 (S.D. Iowa March 27, 2017)
(addressing the waiver implications of a witness reporting to the government that other witnesses committed perjury three years earlier; holding that the witness did not have a common interest with the government, but that the government did not waive its work product protection when disclosing work product to the witness; "But the Eighth Circuit has never held that a party waives work-product protection when it communicates with a third-party witness merely by virtue of the fact that the witness is a third party who lacks a common interest in the litigation. . . . Were a common interest necessary for the privilege to extend to communications with third parties, the Eighth Circuit would have had no occasion to recognize the possibility that a common-interest work-product doctrine extends the scope of the work-product privilege. Additionally, there is no basis upon which to assume such a requirement could only be met by an interest sufficient to invoke the common-interest doctrine applicable in the context of attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2017-03-27 Federal IA

Chapter: 48.602

Case Name: Pellegrino v. United States Trans. Sec. Administration, Civ. A. No. 09-5505, 2015 U.S. Dist. 59096 (E.D. Pa. May 6, 2015)
(holding that two government agencies shared a common interest; "'These communications did not waive the protection of the work product doctrine because the TSA attorneys and the local prosecutors shared a common legal interest.'")

Case Date Jurisidction State Cite Checked
2015-05-06 Federal PA

Chapter: 48.602

Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
(finding that New Jersey recognized the common interest doctrine, inexplicably applying it to the work product context as well as the privilege context; citing the Restatement's provision of finding the common interest doctrine to "non-litigated" matters; "New Jersey applies the common interest doctrine in the context of sharing confidential communications between an attorney and client with third parties and in the context of sharing work product with third parties.")

Case Date Jurisidction State Cite Checked
2014-07-21 State NJ

Chapter: 48.602

Case Name: Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 2:12-cv-2182 KJM KJN, 2014 U.S. Dist. LEXIS 48509 (E.D. Cal. April 7, 2014)
(analyzing common interest doctrine; finding the common agreement affected the work product waiver analysis; "[T]here was reasonable basis for LMI to believe that the common interest recipients of the work product documents, i.e. the Navy and the City of Vallejo, would keep those disclosed materials confidential from Steadfast. . . . While LMI has not provided the court with the terms of its written common interest agreement with the Navy and the City of Vallejo, the mere existence of such an agreement is further evidence that disclosure to these two non-parties did not waive work product protection.")

Case Date Jurisidction State Cite Checked
2014-04-07 Federal CA

Chapter: 48.602

Case Name: Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 2:12-cv-2182 KJM KJN, 2014 U.S. Dist. LEXIS 48509 (E.D. Cal. April 7, 2014)
(analyzing common interest doctrine; "The common interest exception is construed more narrowly in the context of attorney-client privilege than it is in the context of the attorney work product doctrine."; "For work-product immunity to be preserved, '[t]he shared interest may be only financial or commercial in nature,' and no waiver will occur so long as there is a reasonable basis for believing that the common interest recipient will keep the disclosed material confidential.")

Case Date Jurisidction State Cite Checked
2014-04-07 Federal CA

Chapter: 48.602

Case Name: Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., No. 2:10-cv-1207 GEB AC, 2014 U.S. Dist. LEXIS 20694, at *26-27, *27 (E.D. Cal. Feb. 18, 2014)
(analyzing the common interest doctrine in the work product context; finding that the common interest doctrine was more narrow in the privilege than in the work product setting; finding that there not been a waiver when work product was shared between a district attorney and a private plaintiff suing the same defendant; "The common interest exception is construed more narrowly in the context of attorney-client privilege than it is in the context of the attorney work product doctrine. . . . In the work product context, common interests are not construed so narrowly as to limit the exception only to co-parties. . . . The shared interest may be only financial or commercial in nature. . . . Essentially, a court must determine if disclosure is consistent with the work product doctrine's purpose of preserving the adversary system.")

Case Date Jurisidction State Cite Checked
2014-02-18 Federal CA B 7/14

Chapter: 48.602

Case Name: O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014)
September 10, 2014 (PRIVILEGE POINT)

"New Jersey Supreme Court Recognizes the Common Interest Doctrine: Part II"

Last week's Privilege Point discussed the New Jersey Supreme Court's recognition of the common interest doctrine. O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014). That decision addressed two other issues worth noting.

First, the court reiterated an attorney-client privilege principle unique to New Jersey. In that state, unlike any other state, "[t]he privilege must yield . . . In furtherance of 'overriding public policy concerns,' . . . Or other important societal concerns." Id. At 309 (citation omitted). Second, the New Jersey court followed a few other courts in analyzing the common interest doctrine in a setting where it may not even have been relevant. The case involved a private lawyer and a municipal lawyer cooperating in their responses to a resident's lawsuits and Open Public Records Act requests. Most of the shared documents would seem to deserve work product protection. Because courts agree that disclosing work product to friendly third parties does not waive that robust protection, most courts do not even address the common interest doctrine in the work product context. Instead, courts insist that participants meet the demanding common interest doctrine standard only when seeking to avoid a waiver of the much more fragile attorney-client privilege protection. The O'Boyle decision recognized that "there are circumstances when disclosure of work product to a third party . . . Does not waive the protection afforded to it." Id. At 312. The court also acknowledged that "[d]isclosure consistent with the common interest rule is one of those circumstances," but its decision may mistakenly cause some to think that they must meet the exacting common interest doctrine standard to avoid waiving work product protection. Id. (emphasis added).

One of the great ironies of the common interest doctrine is that just when it becomes available in most courts (when the participants are in or anticipate litigation), it is not needed. Participants in that context usually can share their work product without risking a waiver — even without a common interest agreement.

Case Date Jurisidction State Cite Checked
2014-01-01 Federal
Comment:

key case


Chapter: 48.602

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: 48.602

Case Name: Harpel v. Nicholson, Civ. A. No. 12-10280-RWZ, 2013 U.S. Dist. LEXIS 141684, at *5 n.3 (D. Mass. Oct. 1, 2013)
("The common interest doctrine has also been applied to protect shared work product.")

Case Date Jurisidction State Cite Checked
2013-10-01 Federal MA B 4/14

Chapter: 48.602

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 623 (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; "The definition of 'common legal interest' in the work-product context is not construed as limited only to co-parties in litigation. "'So long as transferor and 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.'" (citation omitted))

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

Chapter: 48.602

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 473 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "The co-client exception and common interest doctrine analysis governing the attorney-client privilege applies with equal force to the work product doctrine.")

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

Chapter: 48.602

Case Name: In re Reserve Fund Sec. & Derivative Litig. v. Reserve Mgmt. Co., Nos. 09 MD. 2011 (PGG) & 09 Civ. 4346 (PGG), 2012 U.S. Dist. LEXIS 147723, at *31, *32 (S.D.N.Y. Sept. 12, 2012)
("[W]here the disclosing party and the recipient party share a common interest, courts generally find no waiver of the work product privilege."; noting that "[t]he fact that Defendants later claimed that Willkie had a conflict of interest does not alter the fact that at the time Wilmer provided its memos to Willkie, both firms had a common interest in providing legal representation to RMCI, related entities, and the Bents.")

Case Date Jurisidction State Cite Checked
2012-09-12 Federal NY B 12/13

Chapter: 48.602

Case Name: Fojtasek v. NCL (Bahamas) Ltd., Case No. 09-20581-CIV-UNGARO/SIMONTON, 2009 U.S. Dist. LEXIS 107478 (S.D. Fla. Nov. 6, 2009)