Showing 202 of 202 results

Chapter: 48.3

Case Name:


Case Date Jurisdiction State Cite Checked

Chapter: 48.7

Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232- & 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
August 2, 2017 (PRIVILEGE POINT)

"Court Addresses Waiver Implications of a Target's Due Diligence Disclosures to its Ultimate Acquirer"

Acquiring companies predictably seek information from their acquisition targets, such as descriptions of the targets' ongoing litigation. During their due diligence, the acquirer may demand the target's documents or communications protected by the attorney-client privilege, the work product doctrine, or both.

In RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232- & 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017), plaintiff RKF sued Tropicana in 2014, alleging that Tropicana wrongfully terminated an exclusive agency contract. In 2015, Penn Gambling acquired Tropicana. RKF then sought discovery of "information about [its] lawsuits" that Tropicana disclosed to Penn Gaming before the acquisition. Id. at *5. The court found that Tropicana's due diligence disclosures waived privilege protection but not work product protection. In finding a privilege waiver, the court rejected Tropicana's argument that it shared a "common interest" with acquirer Penn Gaming -- noting that the "majority of courts have rejected application of the [common interest] doctrine where the disclosure was made for business purposes rather than for the purpose of pursuing a common legal effort." Id. at *10. The court concluded that "Tropicana provided information about the lawsuit so that Penn Gaming could make a business decision whether to proceed with the acquisition." Id. at *14. In contrast, the court found that Tropicana did not waive its work product protection by disclosing work product to Penn Gaming during the due diligence process. The court correctly noted that unlike the fragile privilege protection, work product protection "is not waived if the disclosing party has a reasonable basis to believe that the recipient will keep the disclosed materials confidential and not reveal them to the disclosing party's adversary." Id. at *17. The court concluded that Penn Gaming had a vital interest in preserving as confidential Tropicana's disclosure about RKF's suit because Penn Gaming "would, directly or indirectly, assume Tropicana's potential liability if the merger went through." Id. at *18.

Other courts have reached the identical two-part conclusion in addressing pre-acquisition due diligence disclosures – which dramatically highlights the contrast between the fragile privilege protection and the robust work product protection.

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

key case


Chapter: 48.7

Case Name: Valley Force Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006-RLM-SLC, 2017 U.S. Dist. LEXIS 57370 (N.D. Ind. April 14, 2017)
(holding that the environmental consultant was outside privilege protection, but could create protected work product; "Hartford Iron claims that all of the withheld emails are protected by the attorney-client privilege, asserting that the emails were confidential communications, between its counsel and an agent hired by counsel, to aid counsel in providing legal advice to Hartford Iron. Valley Forge disagrees, contending that the primary purpose in retaining Keramida [Environmental contractor] and CH2M [Environmental contractor] was not to provide legal advice, but rather, to provide environmental remediation services -- that is, to design and construct a new stormwater control system."; "Here, although Dameron's [Plaintiff's counsel selected by plaintiff insurance company to represent Hartford Iron] firm initially retained Keramida and CH2M, 'retention or employment by the attorney alone is insufficient to bring the consultant within the scope of the attorney-client privilege.'"; "Keramida and CH2M -- like HydroTech and August Mack before them -- were hired to design, build, and install a stormwater remediation plan that would be acceptable to IDEM and the EPA. In doing so, they 'were not simply putting into usable form information obtained from the client.'. . . In fact, it is evident that the assistance rendered by Keramida and CH2M 'was based on factual and scientific evidence obtained through studies and observation of the physical condition of the [Hartford Iron] site, and not through client confidences.'"; "The provision of environmental consulting advice or services falls outside the attorney-client privilege, which is to be 'strictly confined within the narrowest possible limits.'"; "It is apparent that Dameron employed language at times in a deliberate effort to bring Keramida and CH2M within the privilege. . . . But labeling communications as 'privileged and confidential' or 'attorney-client work product' 'does not render the documents privileged when they contain no communication made or work done for the purpose of providing informed legal advice.'"; "In fact, at times, Dameron's role as defense counsel appeared to morph into that of an environmental consultant, most likely due to her extensive experience performing clean ups as an environmental consulting geologist prior to practicing law. . . . Ultimately, Dameron's initial retention of Keramida did not appear to be because she needed information translated into a useable form so that she could render legal advice; rather, Dameron quickly spotted problems with August Mack's stormwater collection system and urged Valley Forge and Hartford Iron to get a second opinion from another environmental contractor.")

Case Date Jurisdiction State Cite Checked
2017-04-14 Federal IN

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 Jurisdiction State Cite Checked
2017-01-27 Federal

Chapter: 48.7

Case Name: In re Grand Jury Matter #3, 847 F.3d 157 (3d Cir. 2017) (per curiam)
March 29, 2017 (PRIVILEGE POINT)

"Circuit Court Affirms Key Difference Between Privilege and Work Product Protections"

Disclosing privileged communications to third parties generally waives that fragile protection, even if the third parties are friendly. In contrast, disclosing work product to third parties waives that more robust protection only if it increases the chance of the disclosed documents "falling into enemy hands."

In In re Grand Jury Matter #3, 847 F.3d 157 (3d Cir. 2017) (per curiam), the Third Circuit affirmed these key principles in a common context – disclosure to an accountant. The court held that although the subject of a criminal investigation "waived the attorney-client privilege by forwarding [a privileged and work product-protected] email to his accountant, the document still retained its work-product status." Id. at 165.

These dramatically different waiver implications apply when clients disclose documents deserving both protections to other friendly third parties -- such as public relations consultants, banks, business advisors, family members, etc.

Case Date Jurisdiction State Cite Checked
2017-01-01 Federal
Comment:

key case


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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2013-10-17 Federal WA B 5/15

Chapter: 48.10

Case Name: Lassiter v. Hidalgo Medical Services, No. 17-cv-0850 JCH/SMV, 2018 U.S. Dist. LEXIS 64972 (D.N.M. April 18, 2018)
(analyzing work product protection for defendant's investigation into sexual harassment claims; "Nor has Defendant waived the work product protection. Plaintiff contends that Defendant relies on the Maynes [Lawyer who acted as an investigator rather than a legal advisor] reports as part of its defense. . . . Plaintiff argues that Defendant cannot use the investigation's findings as a defense to Plaintiff's claims while simultaneously arguing that such information is not discoverable. The Court agrees that Defendant should not be permitted to use the investigations as both sword and shield. But there is no evidence that Defendant is doing so in this case. Plaintiff argues that Defendant must be relying on the investigations because it denies Plaintiff's allegations that (1) HMS had notice of the harassment and took no remedial action, and (2) HMS failed to investigate reports of discrimination. . . . Plaintiff argues that Defendant 'has no factual basis to deny these material allegations without relying on Ms. Maynes' factual investigations.'. . . Plaintiff also points to Defendant's reliance on the investigations in a related case in state court. . . . At oral argument, defense counsel expressly disclaimed any reliance on the Maynes investigations as a defense in this case. Counsel represented that Defendant does not intend to rely on Ms. Maynes as a witness at trial. She is not listed among Defendant's witnesses in the parties' Joint Status Report and Provisional Discovery Plan. . . . Nor, as counsel stated during oral argument, does Defendant intend elicit testimony from any witness as to whether Defendant did or did not take action based on the Maynes reports. That Defendant may rely on the investigations in a related case is of no consequence to their discoverability here. Defendant has not waived the work product protection here.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal NM
Comment:

key case


Chapter: 48.10

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-15-0384, 2018 Ill. App. LEXIS 51 (Ill. App. 5d Feb. 7, 2018)
(holding that a doctor who has sued a former lawyer for breach of fiduciary duty must disclose communications with other lawyers at the same time the doctor was represented by that lawyer; holding that the implied waiver extended to communications about the doctor's breach claim, but not about the doctor's settlement of an earlier case – which would be governed by an objective standard; "Rather, Greensfelder is seeking the work-product of Daily, Stinson, and Padberg, which represented the plaintiffs at various times leading up to and during the Missouri litigation, the same time period and litigation in which the plaintiffs allege Greensfelder's breaches of fiduciary duty caused them the loss of their business. We find that the work product of Daily, Stinson, and Padberg relating to these matters fits squarely within the 'at issue' exception to the work product because it is the basis of Greensfelder's defense in this subsequent litigation that these attorneys played a role in causing the plaintiffs' damages. Greensfelder's defense to the plaintiffs' claim that Greensfelder's breach of fiduciary duty caused these damages centers around the role Daily, Stinson, and Padberg's representation of the plaintiffs may have played in the institution of the Missouri litigation and its outcome. Accordingly, we find to be discoverable all documents on Daily, Stinson, and Padberg's privilege logs that contain work product of Daily, Stinson, and Padberg in their representation of the plaintiffs with regard to negotiations with SSM, as well as negotiations with the doctors involved in the period of time leading up to the Missouri litigation, during the Missouri litigation, and during its settlement.")

Case Date Jurisdiction State Cite Checked
2018-02-07 State IL

Chapter: 48.10

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-15-0384, 2018 Ill. App. LEXIS 51 (Ill. App. 5d Feb. 7, 2018)
(holding that a doctor who has sued a former lawyer for breach of fiduciary duty must disclose communications with other lawyers at the same time the doctor was represented by that lawyer; holding that the implied waiver extended to communications about the doctor's breach claim, but not about the doctor's settlement of an earlier case – which would be governed by an objective standard; "While the 'at issue' exception to the work product privilege in subsequent litigation only requires the privileged material be the basis of a claim or defense raised in the subsequent suit brought by the client, the 'at issue' exception to the attorney-client privilege can be invoked only if the privileged material is required to truthfully resolve a factual or legal issue in the subsequent suit brought by the client. . . . Accordingly, the question arises of which 'at issue' exception applies to attorney-client communications containing work product. We hold the test for the 'at issue' exception to the attorney-client privilege applies to such documents.")

Case Date Jurisdiction State Cite Checked
2018-02-07 State IL

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
1996-01-01 State VA

Chapter: 48.11

Case Name: Regents of the University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018)
(in a patent case, explaining that the common interest doctrine can apply even in a transactional context, but rejecting a common interest doctrine argument because one of the participants was not represented by a lawyer; "Defendants, properly, do not assert work product privilege; but case law examining the common interest privilege in the work product context does not necessarily require representation on all sides.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal CA

Chapter: 48.11

Case Name: Kehle v. USAA Casualty Ins. Co., Case No. 17-80447-CV-MARRA/MATTHEWMAN, 2018 U.S. Dist. LEXIS 89846 (S.D. Fla. May 30, 2018)
(holding that the at issue doctrine applied, because the plaintiff must carry the burden of proving good faith of an earlier arbitration; apply the Hearn doctrine (mentioning attorney-client privilege protection but then apparently addressing only work product protection); "The subject-matter waiver doctrine provides that a party who injects into the case an issue that in fairness requires an examination of communications otherwise protected by the attorney-client privilege loses that privilege."; "In Cox [Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir.1994)], the Eleventh Circuit stated that the 'subject matter waiver doctrine does not extend to materials protected by the opinion work product privilege.'"; "To establish that Plaintiff has indeed waived her opinion work-product objections to the emails which pertain to the good faith and reasonableness of the hybrid Coblentz agreement/arbitration award between Plaintiff and Mr. Henderson, Defendant must satisfy the three-part Hearn test."; "The Court finds that Defendant has met the first element of the Hearn test because it has shown that the assertion of the opinion work-product privilege was affirmatively raised by Plaintiff when she filed the lawsuit."; "Defendant has met the second element of the Hearn test by demonstrating that Plaintiff has put the protected information at issue by making it relevant to this case."; "Finally, the Court finds that allowing Plaintiff to maintain her work-product privilege would deny USAA access to information vital to its defense because it would preclude USAA from probing into the primary source of evidence of alleged bad faith, fraud, and collusion. Plaintiff has brought a breach of contract action and seeks to enforce the hybrid Coblentz agreement/arbitration award against Defendant USAA in the amount of $8,818,804. As stated above, the spirit of the at-issue waiver doctrine is to encourage fairness. Enforcing the hybrid Coblentz agreement/arbitration award requires Plaintiff to establish, by a prima facie showing, that the hybrid Coblentz agreement/arbitration award was reasonable and made in good faith, but the ultimate burden of proof will rest with USAA. . . . It would be manifestly unfair to prohibit Defendant from discovery into the communications between Plaintiff's former and current attorneys regarding the settlement agreement, the arbitration proceedings, and the arbitration award which are directly relevant to the reasonableness and good faith of the hybrid Coblentz agreement/arbitration award, and to issues of alleged collusion.")

Case Date Jurisdiction State Cite Checked
2018-05-30 Federal FL

Chapter: 48.11

Case Name: Lassiter v. Hidalgo Medical Services, No. 17-cv-0850 JCH/SMV, 2018 U.S. Dist. LEXIS 64972 (D.N.M. April 18, 2018)
(analyzing work product protection for defendant's investigation into sexual harassment claims; "Nor has Defendant waived the work product protection. Plaintiff contends that Defendant relies on the Maynes [Lawyer who acted as an investigator rather than a legal advisor] reports as part of its defense. . . . Plaintiff argues that Defendant cannot use the investigation's findings as a defense to Plaintiff's claims while simultaneously arguing that such information is not discoverable. The Court agrees that Defendant should not be permitted to use the investigations as both sword and shield. But there is no evidence that Defendant is doing so in this case. Plaintiff argues that Defendant must be relying on the investigations because it denies Plaintiff's allegations that (1) HMS had notice of the harassment and took no remedial action, and (2) HMS failed to investigate reports of discrimination. . . . Plaintiff argues that Defendant 'has no factual basis to deny these material allegations without relying on Ms. Maynes' factual investigations.'. . . Plaintiff also points to Defendant's reliance on the investigations in a related case in state court. . . . At oral argument, defense counsel expressly disclaimed any reliance on the Maynes investigations as a defense in this case. Counsel represented that Defendant does not intend to rely on Ms. Maynes as a witness at trial. She is not listed among Defendant's witnesses in the parties' Joint Status Report and Provisional Discovery Plan. . . . Nor, as counsel stated during oral argument, does Defendant intend elicit testimony from any witness as to whether Defendant did or did not take action based on the Maynes reports. That Defendant may rely on the investigations in a related case is of no consequence to their discoverability here. Defendant has not waived the work product protection here.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal NM
Comment:

key case


Chapter: 48.11

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-15-0384, 2018 Ill. App. LEXIS 51 (Ill. App. 5d Feb. 7, 2018)
(holding that a doctor who has sued a former lawyer for breach of fiduciary duty must disclose communications with other lawyers at the same time the doctor was represented by that lawyer; holding that the implied waiver extended to communications about the doctor's breach claim, but not about the doctor's settlement of an earlier case – which would be governed by an objective standard; "While the 'at issue' exception to the work product privilege in subsequent litigation only requires the privileged material be the basis of a claim or defense raised in the subsequent suit brought by the client, the 'at issue' exception to the attorney-client privilege can be invoked only if the privileged material is required to truthfully resolve a factual or legal issue in the subsequent suit brought by the client. . . . Accordingly, the question arises of which 'at issue' exception applies to attorney-client communications containing work product. We hold the test for the 'at issue' exception to the attorney-client privilege applies to such documents.")

Case Date Jurisdiction State Cite Checked
2018-02-07 State IL

Chapter: 48.11

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-15-0384, 2018 Ill. App. LEXIS 51 (Ill. App. 5d Feb. 7, 2018)
(holding that a doctor who has sued a former lawyer for breach of fiduciary duty must disclose communications with other lawyers at the same time the doctor was represented by that lawyer; holding that the implied waiver extended to communications about the doctor's breach claim, but not about the doctor's settlement of an earlier case – which would be governed by an objective standard; "Rather, Greensfelder is seeking the work-product of Daily, Stinson, and Padberg, which represented the plaintiffs at various times leading up to and during the Missouri litigation, the same time period and litigation in which the plaintiffs allege Greensfelder's breaches of fiduciary duty caused them the loss of their business. We find that the work product of Daily, Stinson, and Padberg relating to these matters fits squarely within the 'at issue' exception to the work product because it is the basis of Greensfelder's defense in this subsequent litigation that these attorneys played a role in causing the plaintiffs' damages. Greensfelder's defense to the plaintiffs' claim that Greensfelder's breach of fiduciary duty caused these damages centers around the role Daily, Stinson, and Padberg's representation of the plaintiffs may have played in the institution of the Missouri litigation and its outcome. Accordingly, we find to be discoverable all documents on Daily, Stinson, and Padberg's privilege logs that contain work product of Daily, Stinson, and Padberg in their representation of the plaintiffs with regard to negotiations with SSM, as well as negotiations with the doctors involved in the period of time leading up to the Missouri litigation, during the Missouri litigation, and during its settlement.")

Case Date Jurisdiction State Cite Checked
2018-02-07 State IL

Chapter: 48.11

Case Name: Chartraw v. City of Shawano, Case No. 16-C-807, 2017 U.S. Dist. LEXIS 187590 (E.D. Wi. Nov. 14, 2017)
(analyzing work product protection for a hostile work environment investigation; finding that the interviews deserved work product protection, and that the defendant was not relying on the investigation and therefore did not trigger and Faragher-Ellerth waiver; "But while the defendants have asserted the Faragher/Ellerth defense with respect to the Chartraw investigation [investigation into this plaintiff's charges], they have not raised it in regards to the Hoffmann investigation. Again, the Chartraw and Hoffmann investigations [earlier hostile work environment investigation] are separate and distinct. Chartraw's investigation occurred as a matter of course pursuant to the City's Personnel Policy after she made formal complaints of Chief Kohl's lewd comments concerning herself and other women to the City. Conversely, Kalny initiated the Hoffmann investigation himself after learning about Hoffmann's failure to promote allegations, with an eye toward litigation. In short, the defendants' assertion of the Faragher/Ellerth defense with respect to Chartraw's complaints and investigation does not waive the right to invoke work-product protection as to documents created and obtained during the course of the Hoffmann investigation. Therefore, Chartraw's motion must be denied.")

Case Date Jurisdiction State Cite Checked
2017-11-14 Federal WI
Comment:

key case


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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2016-10-25 Federal VA

Chapter: 48.062

Case Name: Youngevity International, Inc. v. Smith, Case No. 16-cv-704 BTM (JLB), 2017 U.S. Dist. LEXIS 155560 (S.D. Cal. Sept. 22, 2017)
(holding that the common interest doctrine can protect some but not all communications between plaintiff Youngevity and another company (Livewell) (owned by Anson), which is a vendor of another company (Wakaya) which was formed by a former Youngevity distributor (Smith); "At the time of the email communications, all parties had or were preparing to assert legal claims against Wakaya. Youngevity and Wakaya were already engaged in litigation. Livewell and Anson were preparing to assert their claims against Wakaya in the Notices that were sent two days later, on December 16, 2016. Accordingly, counsel for Youngevity, Livewell and Anson shared legal advice related to their common legal claims against Wakaya. The parallels between the Notices and Youngevity's allegations in the instant litigation evidence this common legal strategy."; "[W]hile Anson's position as an officer of Wakaya meant he had some interests that were adverse to Youngevity, it does not establish that Anson was adverse to Youngevity in all respects. Wakaya presents no evidence that Anson took any action adverse to the common legal strategy agreement between Youngevity, Livewell and Anson. To the contrary, the record shows that at the time of the email correspondence at issue, Anson was actively working to sever all ties with Wakaya by drafting the Notices and seeking legal advice on separation as an employee of Wakaya. Although Anson and Youngevity may not have had 'identical interests and may even have [had] some adverse motives,' the record shows they shared a common legal interest in asserting common claims against Wakaya."; "Accordingly, the Court concludes that Youngevity did not waive work product protection by forwarding work product to counsel for Livewell and Anson because the parties shared a common legal interest.")

Case Date Jurisdiction State Cite Checked
2017-09-22 Federal CA

Chapter: 48.202

Case Name: Carlin v. Dairy America, Inc., Case No. 1:09-cv-00430-AWI-EPG, 2017 U.S. Dist. LEXIS 144231 (E.D. Cal. Sept. 6, 2017)
(holding that documents relating to a plaintiff's interview of defendant's former employees deserve work product protection; "Citing Federal Rule of Evidence 502, DairyAmerica claims that Plaintiffs waived their right to immunity because former employees are third-party witnesses not party to the suit, and '[w]here a party selectively discloses privileged materials, the remainder of the material must be disclosed.'. . . There is nothing in the record that suggests that Plaintiffs' selectively waived certain materials, or that their dissemination substantially increased the opportunities for DairyAmerica to obtain the communications. Plaintiffs represented that withheld communications were to share 'draft affidavits. . . and related correspondence with witnesses for whom these affidavits were prepared.'. . . Plaintiffs further stated that 'Mr. White's attorney. . . disclosed all the communications [and]. . . Once [they] found that out. . . [they] waived all of this production. . . with Doug White [and]. . . gave them everything after his lawyer disclosed it. With Ms. Ellingsworth [all of whom were former defendant employees] and Ms. Bimemiller [the defendant's former employees who had been interviewed by plaintiff's lawyer] . . . [they] withheld all work product, and with the lawyers, [they] produced hundreds of communications. . . because they were not work product. [They] just withheld a handful that contain [their] mental impressions. That's it.'"; "[I]t is clear why Plaintiffs produced communication from Mr. White and failed to produce communications from Ms. Elligsworth and Ms. Bimemiller. Plaintiffs' communications with these third parties witnesses cannot be construed to have been conduits for Defendant; plaintiffs did not waive their work product protection regarding Ms. Elligsworth and Ms. Bimemiller."; "Regarding communications with witnesses' counsels, the same logic follows. Plaintiffs did not waive their opinion work product protection regarding Ms. Elligsworth's and Ms. Bimemiller's [defendant's former employees] lawyers because they were shared in a confidential manner that did not lead to their disclosure to Dairy America.")

Case Date Jurisdiction State Cite Checked
2017-09-06 Federal CA
Comment:

key case


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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2013-01-01 State RI B 3/14

Chapter: 48.203

Case Name: Firefighters' Retirement System v. Citco Group Ltd., Civ. A. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 79034 (M.D. La. May 10, 2018)
(finding that the presence of friendly third parties did not destroy work product protection; "Here, although the court considers representatives of the JOL ["Cayman Islands equivalent of a bankruptcy trustee"] and Alpha to be third parties present at the Liquidation Committee meetings, the Fifth Circuit has explained that the presence of a third party does not necessarily waive work product protection. Instead, the court must consider whether such disclosure was made in a way as to 'substantially increase' the possibility for Plaintiffs' adversary to obtain the information. Plaintiffs aver that 'the parties participating in the liquidation committee minutes maintained an expectation of privacy....' In support, Plaintiffs attach the declaration of Claire Loebell, an executive director of EY Cayman Ltd., who was appointed as one of the two JOLs of Leveraged and Arbitrage. Ms. Loebell asserts in her Declaration that '[l]egal matters often dominate the agenda for liquidation committee meetings because litigation claims are frequently an insolvent company's most valuable asset' and that she expects 'that discussions at committee meetings about legal matters, proprietary information, and personal information about investors or creditors will remain confidential.' For some of the redacted documents, it appears that only representatives of E & Y and Plaintiffs were present. For others, representatives of E & Y, Plaintiffs, and Fletcher Income Alpha Funds were present. In either event, the privilege log indicates that attendance during these meetings was more restricted than intimated by the Citco Defendants. Although the court recognizes that there is some inherent tension between a JOL and a particular creditor (because the JOL must consider the interests of all creditors), the court finds that disclosure to the JOLs or others participating in the Liquidation Committee Meetings does not substantially increase the likelihood that the same information would be disclosed to defendants in this action.")

Case Date Jurisdiction State Cite Checked
2018-05-10 Federal LA
Comment:

key case


Chapter: 48.203

Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Proc. No. 08-01789 (SMB), Adv. Proc. No. 10-04292 (SMB), 2017 Bankr. LEXIS 3638 (S.D.N.Y. Oct. 17, 2017)
(in a case arising from Bernie Madoff's fraud, holding that drafts of Madoff's declaration deserved work product protection; "'The use of Robert and Ruth Roman [Bernie Madoff's sister-in-law and her husband] as go-betweens did not destroy the privilege or waive it. The Romans were acting as Chaitman's [Lawyer for Madoff's sister-in-law's husband] agents in transmitting drafts of the Madoff Declaration between Chaitman and Madoff, and the protections afforded by the work-product doctrine are not waived when materials are shared with an attorney's agent.'")

Case Date Jurisdiction State Cite Checked
2017-10-17 Federal NY

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2012-09-27 Federal PA B 7/13

Chapter: 48.204

Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; concluding that the company did not waive work product protection by sharing its work product with independent auditors; "ML's argument here is different from the argument it made for the materials provided to the SEC; it contends that even the actual physical production of work product to a company's auditors does not waive work-product protection because an independent or outside auditor typically shares a common interest with the corporation for purpose of the work product and waiver doctrines."; agreeing with Morgan Lewis; "In their motion, Defendants say that there is a 'split' on the legal consequences arising from disclosures to a corporation's accountants or auditors but then concede that 'the majority' of courts hold that auditing and accounting firms typically do share a common interest."; "The Undersigned is not persuaded by this effort to treat Deloitte differently from those cases that hold that an outside auditor has a common interest with the corporation for work-product waiver issues.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 48.204

Case Name: In re Grand Jury Matter #3, 847 F.3d 157 (3d Cir. 2017) (per curiam)
March 29, 2017 (PRIVILEGE POINT)

"Circuit Court Affirms Key Difference Between Privilege and Work Product Protections"

Disclosing privileged communications to third parties generally waives that fragile protection, even if the third parties are friendly. In contrast, disclosing work product to third parties waives that more robust protection only if it increases the chance of the disclosed documents "falling into enemy hands."

In In re Grand Jury Matter #3, 847 F.3d 157 (3d Cir. 2017) (per curiam), the Third Circuit affirmed these key principles in a common context – disclosure to an accountant. The court held that although the subject of a criminal investigation "waived the attorney-client privilege by forwarding [a privileged and work product-protected] email to his accountant, the document still retained its work-product status." Id. at 165.

These dramatically different waiver implications apply when clients disclose documents deserving both protections to other friendly third parties -- such as public relations consultants, banks, business advisors, family members, etc.

Case Date Jurisdiction State Cite Checked
2017-01-01 Federal
Comment:

key case


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 Jurisdiction 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 Jurisdiction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 48.204

Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that WilmerHale did not waive the work product protection by disclosing work product to Household's regular auditor KPMG; "Plaintiffs also seek a finding of waiver based on the fact that Household produced the Restructuring Report and related documents to its outside auditor, KPMG. . . . The court has already addressed and rejected Plaintiffs' arguments regarding disclosure to an auditor.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 48.205

Case Name: Firefighters' Retirement System v. Citco Group Ltd., Civ. A. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 79034 (M.D. La. May 10, 2018)
(finding that the presence of friendly third parties did not destroy work product protection; "Here, although the court considers representatives of the JOL ["Cayman Islands equivalent of a bankruptcy trustee"] and Alpha to be third parties present at the Liquidation Committee meetings, the Fifth Circuit has explained that the presence of a third party does not necessarily waive work product protection. Instead, the court must consider whether such disclosure was made in a way as to 'substantially increase' the possibility for Plaintiffs' adversary to obtain the information. Plaintiffs aver that 'the parties participating in the liquidation committee minutes maintained an expectation of privacy....' In support, Plaintiffs attach the declaration of Claire Loebell, an executive director of EY Cayman Ltd., who was appointed as one of the two JOLs of Leveraged and Arbitrage. Ms. Loebell asserts in her Declaration that '[l]egal matters often dominate the agenda for liquidation committee meetings because litigation claims are frequently an insolvent company's most valuable asset' and that she expects 'that discussions at committee meetings about legal matters, proprietary information, and personal information about investors or creditors will remain confidential.' For some of the redacted documents, it appears that only representatives of E & Y and Plaintiffs were present. For others, representatives of E & Y, Plaintiffs, and Fletcher Income Alpha Funds were present. In either event, the privilege log indicates that attendance during these meetings was more restricted than intimated by the Citco Defendants. Although the court recognizes that there is some inherent tension between a JOL and a particular creditor (because the JOL must consider the interests of all creditors), the court finds that disclosure to the JOLs or others participating in the Liquidation Committee Meetings does not substantially increase the likelihood that the same information would be disclosed to defendants in this action.")

Case Date Jurisdiction State Cite Checked
2018-05-10 Federal LA
Comment:

key case


Chapter: 48.205

Case Name: Wade v. Touchdown Realty Grp., Civ. A. No. 17-10400-PBS, 2018 U.S. Dist. LEXIS 13069 (D. Mass. Jan. 26, 2018)
(finding that a client agent/consultant was outside privilege protection, but that disclosing work product to the consultant did not waive that protection; "To the extent that there was a disclosure of information to Mr. Schadler [a consultant on a bathroom and bedroom renovation], it was to an individual aligned with the plaintiffs, and did not constitute a waiver of the protection afforded by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2018-01-26 Federal MA

Chapter: 48.205

Case Name: Viamedia, Inc. v. Comcast Corporation, Case No. 16-cv-5486, 2017 U.S. Dist. LEXIS 101852 (N.D. Ill. June 30, 2017)
(finding that disclosure to a litigation funder did not waive work product protection; "Defendants do not argue that Viamedia waived the work-product doctrine by disclosing documents to litigation funding firms under an NDA. Moreover, while Defendants point out that funders could disclose information to certain individuals and organizations (e.g., their accountants and attorneys), the Court cannot conclude that Viamedia's disclosure made it substantially more likely that its work-product protected information would fall in the hands of its adversaries.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal IL

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2011-05-04 Federal TX B 7/13

Chapter: 48.206

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

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

key case


Chapter: 48.206

Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232- & 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
August 2, 2017 (PRIVILEGE POINT)

"Court Addresses Waiver Implications of a Target's Due Diligence Disclosures to its Ultimate Acquirer"

Acquiring companies predictably seek information from their acquisition targets, such as descriptions of the targets' ongoing litigation. During their due diligence, the acquirer may demand the target's documents or communications protected by the attorney-client privilege, the work product doctrine, or both.

In RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232- & 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017), plaintiff RKF sued Tropicana in 2014, alleging that Tropicana wrongfully terminated an exclusive agency contract. In 2015, Penn Gambling acquired Tropicana. RKF then sought discovery of "information about [its] lawsuits" that Tropicana disclosed to Penn Gaming before the acquisition. Id. at *5. The court found that Tropicana's due diligence disclosures waived privilege protection but not work product protection. In finding a privilege waiver, the court rejected Tropicana's argument that it shared a "common interest" with acquirer Penn Gaming -- noting that the "majority of courts have rejected application of the [common interest] doctrine where the disclosure was made for business purposes rather than for the purpose of pursuing a common legal effort." Id. at *10. The court concluded that "Tropicana provided information about the lawsuit so that Penn Gaming could make a business decision whether to proceed with the acquisition." Id. at *14. In contrast, the court found that Tropicana did not waive its work product protection by disclosing work product to Penn Gaming during the due diligence process. The court correctly noted that unlike the fragile privilege protection, work product protection "is not waived if the disclosing party has a reasonable basis to believe that the recipient will keep the disclosed materials confidential and not reveal them to the disclosing party's adversary." Id. at *17. The court concluded that Penn Gaming had a vital interest in preserving as confidential Tropicana's disclosure about RKF's suit because Penn Gaming "would, directly or indirectly, assume Tropicana's potential liability if the merger went through." Id. at *18.

Other courts have reached the identical two-part conclusion in addressing pre-acquisition due diligence disclosures – which dramatically highlights the contrast between the fragile privilege protection and the robust work product protection.

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

key case


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 Jurisdiction 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 Jurisdiction State Cite Checked
2012-01-01 Federal DC B 9/13

Chapter: 48.304

Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "Defendants contend that ML made other oral disclosures of work-product information to the SEC, above and beyond the oral downloads of the 12 interviews. The Undersigned cannot reach any conclusions about further disclosures unless and until ML provides additional clarification about what was disclosed. Defendants contend that the ML attorneys took notes of the discussions they had with the SEC and perhaps with the Department of Justice. Defendants request that the Undersigned review in camera ML's attorneys' notes of an October 29, 2013 meeting. ML does not oppose this request. . . . But the Undersigned is unsure about whether ML attorneys met with the SEC and/or the Department of Justice on days other that October 29, 2013."; "Therefore, ML shall, within seven days from this Order, file under seal a copy of all attorney notes discussing or reflecting what information was disclosed to the SEC or the Department of Justice during meetings (or otherwise).")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 48.304

Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "Defendants contend that ML made other oral disclosures of work-product information to the SEC, above and beyond the oral downloads of the 12 interviews. The Undersigned cannot reach any conclusions about further disclosures unless and until ML provides additional clarification about what was disclosed. Defendants contend that the ML attorneys took notes of the discussions they had with the SEC and perhaps with the Department of Justice. Defendants request that the Undersigned review in camera ML's attorneys' notes of an October 29, 2013 meeting. ML does not oppose this request. . . . But the Undersigned is unsure about whether ML attorneys met with the SEC and/or the Department of Justice on days other that October 29, 2013."; "Therefore, ML shall, within seven days from this Order, file under seal a copy of all attorney notes discussing or reflecting what information was disclosed to the SEC or the Department of Justice during meetings (or otherwise).")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 48.304

Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "The SEC also asked for the investigative findings, and ML provided the SEC with information about its findings, including a presentation prepared for the SEC and information about specific witness interviews, which were provided orally. An April 15, 2013 PowerPoint presentation that ML made to the SEC contained, among other things, an events timeline, the names of witnesses whom ML had already interviewed, a breakdown of the transactions deemed to be at the heart of the accounting discrepancy, and the results of its investigation. This 28-page PowerPoint presentation is now in the public record of this lawsuit, as Defendants filed it as an exhibit to their motion.";"On October 29, 2013, ML attorneys met with SEC staff and provided oral downloads of 12 witness interviews."; ". . . Although ML provided the SEC with oral downloads of only 12 witness interviews, it provided Deloitte with information about all the interviews notes and memoranda. It appears as though this was accomplished through the reading (by an ML attorney) of memoranda and interview notes to Deloitte and generalized 'access' to review interview notes selected by Deloitte's investigative team."; "There is no dispute here that the notes and memoranda prepared by ML attorneys are in fact work product material. Rather, the dispute is over the waiver of the work-product doctrine protection."; ""ML does not contend that it provided only vague references of the witness notes and memoranda to the SEC, nor does it argue that only detail-free conclusions or general impressions were orally provided. To the contrary, it factually concedes that its attorneys provided oral downloads of the substance of the 12 witness interview notes and memos."; "ML also argues that Defendants' claim -- that they seek to "level the playing field" -- is an argument which "rings hollow" because "the SEC does not have what the Defendants are seeking.". . But that is an incomplete argument. Yes, it is true that the SEC does not have the actual witness notes and memoranda -- but it has the functional equivalent of them by receiving the oral summaries of the interview materials."; "ML waived work-product protection for the witnesses whose interview notes and memoranda its attorneys disclosed to the SEC in the so-called 'oral downloads.' Defendants advise that 'at least twelve' interview memos were orally relayed . . . so the Undersigned is using that number, as well. If it turns out that ML provided information to the SEC about other witness interviews besides the 12 already identified, then it shall disclose to Defendants the additional notes and memoranda. ML shall provide the notes and memoranda within 7 days of this Order."; "Because there is little or no substantive distinction for waiver purposes between the actual physical delivery of the work product notes and memoranda and reading or orally summarizing the same written material's meaningful substance to one's legal adversary, the Undersigned concludes that the Morgan Lewis & Bockius LLP law firm ('ML') waived work product protection and must provide to Defendants the interview notes and memoranda that were orally downloaded. To that extent, the Undersigned grants Defendants' motion to compel against ML. . . . The waiver, however, is limited to only the witnesses whose interview notes and memoranda were orally provided, which is far less than all the witnesses ML interviewed.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 48.304

Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining that the court's conclusion that WilmerHale did not waive Household's work product protection by disclosing work product to the SEC under a confidentiality agreement; "Plaintiffs finally seek waiver of the privilege based on Household's production to the SEC of 'documents summarizing the Restructuring Report.'. . . Defendants also emphasize that Household expressly withheld any privileged materials pursuant to a privilege log and agreed to the SEC's request for access to the Restructuring Report only on condition that the SEC enter into a written confidentiality agreement. . . . That July 16, 2003 confidentiality agreement specifically stated that 'neither the Committee nor Household intend to waive the protections of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.'"; "[T]he circuit courts are split as to the viability and application to this theory. Some have found that selective waiver is always permissible; some have found that selective waiver is never permissible; and others have found that selective waiver is permissible when the government has signed a confidentiality agreement. The court finds this last approach most persuasive in this case."; "Household insisted on a confidentiality agreement to protect the information. The court agrees with those cases finding that selective waiver may be appropriate where the disclosing party took steps to preserve its privilege. The agreement in this case expressly stated that 'neither the Committee nor Household intend to waive the protections of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.'. . . Plaintiffs make such of the fact that the agreement also allows the SEC to disclose the confidential information 'to the extent that the Staff determines that disclosure is otherwise required by law or would be in furtherance of the Commission's discharge of its duties and responsibilities.'. . . Plaintiffs note that the Qwest Communications [In re Qwest Communs. Int'l, 450 F.3d 1179, 1181 (10th Cir. 2006)] court found that identical confidentiality language did not preclude waiver because it 'gave the [SEC and DOJ] broad discretion to use the Waiver Documents as they saw fit.' 450 F.3d at 1181, 1194. The language in the DOJ's confidentiality agreement, however, was much broader than the language at issue here. In addition, unlike in Qwest, there is no evidence that 'any restrictions on [the documents'] use were loose in practice.' Id. at 1194. Thus, the court finds the agreement sufficient for purposes of applying selective waiver of the WilmerHale documents in this case. Household has not waived the work-product privilege by its voluntary production to the SEC of otherwise privileged documents, and Plaintiffs' motion to compel is denied.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


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 Jurisdiction State Cite Checked
2017-01-20 Federal NY

Chapter: 48.306

Case Name: In re Banc of California Securities Litigation, SA CV 17-00118-AG (DFMx), 2018 U.S. Dist. LEXIS 87477 (C.D.C. May 23, 2018)
(holding that oral communications by Wilmer Hale lawyers to the SEC waived privilege and work product protection; "The parties do not dispute the underlying facts, which can be briefly summarized. On October 18, 2016, a website posted an article by an anonymous writer that alleged that there were financial ties between Banc's then-CEO Sugarman and Jason Galanis, a convicted white-collar criminal. The article set in motion a chain of events that ultimately caused Banc's auditor, KPMG US LLP, to send a Section 10A letter demanding that Banc conduct an investigation. Banc created a Special Committee of its Board of Directors, which in turn hired Wilmer Hale. The investigation conducted by Wilmer Hale included interviews of 15 individuals. Wilmer Hale presented its findings to the Securities and Exchange Commission ("SEC"). Later, at the SEC's request, Wilmer Hale provided the SEC with oral summaries of its 15 interviews.")

Case Date Jurisdiction State Cite Checked
2018-05-23 Federal DC
Comment:

key case


Chapter: 48.306

Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "Defendants contend that ML made other oral disclosures of work-product information to the SEC, above and beyond the oral downloads of the 12 interviews. The Undersigned cannot reach any conclusions about further disclosures unless and until ML provides additional clarification about what was disclosed. Defendants contend that the ML attorneys took notes of the discussions they had with the SEC and perhaps with the Department of Justice. Defendants request that the Undersigned review in camera ML's attorneys' notes of an October 29, 2013 meeting. ML does not oppose this request. . . . But the Undersigned is unsure about whether ML attorneys met with the SEC and/or the Department of Justice on days other that October 29, 2013."; "Therefore, ML shall, within seven days from this Order, file under seal a copy of all attorney notes discussing or reflecting what information was disclosed to the SEC or the Department of Justice during meetings (or otherwise).")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 48.306

Case Name: Meyer v. NCL (Bahamas), Ltd., Case No. 16-23238-CIV-WILLIAMS/SIMONTON, 2017 U.S. Dist. LEXIS 125045 (S.D. Fla. Aug. 8, 2017)
(holding that an investigation following a physical assault on a cruise ship deserved work product protection; also holding that the cruise line did not waive that work product protection by providing witness statements to the FBI; "[T]here is nothing in the record to demonstrate that the Defendant and the FBI were in an adversarial posture, or that the Defendant produced the witness statements for any other reason besides cooperation. Apart from whether the disclosure was required under CVSSA, the undersigned finds that the Defendant did not waive the work-protect protection of the witness statements by providing them to the FBI.")

Case Date Jurisdiction State Cite Checked
2017-08-08 Federal FL
Comment:

key case


Chapter: 48.306

Case Name: In re Ex parte Application of financialright GmbH, 17-mc-105 (DAB), 2017 U.S. Dist. LEXIS 107778 (S.D.N.Y. June 23, 2017)
(addressing plaintiffs' efforts to discover documents related to Jones Day's investigation into the "Volkswagen emissions scandal"; concluding that U.S. law applied to privilege and work product issues; "One issue here is whether Volkswagen waived any privilege covering the documents in question. Jones Day says that it 'has never submitted its interview notes to WV or to the DoJ, or shared the content with the public, and it has not even commented publicly on its representation of [Volkswagen].'. . . In the course of cooperating with the DOJ criminal investigation, Jones Day entered into an agreement with the DOJ 'to preserve VW's claims of attorney-client privilege and work product protection for information disclosed to DOJ in the course of that cooperation.'. . . The agreement states that 'VW through its counsel Jones Day, intends to provide DOJ oral briefings regarding its investigation, and may furnish additional documents or other information to DOJ in connection with such oral briefings.'. . . The agreement further says that 'to the extent any [privileged materials] are provided to DOJ pursuant to this agreement, VW does not intend to waive the protection of the attorney work product doctrine, attorney-client privilege, or any other privilege.' (Id.) Under the agreement, DOJ was to keep any privileged materials confidential 'except to the extent that [it] determine[d] in its sole discretion that disclosure would be in furtherance of [its] discharge of its duties and responsibilities or is otherwise required by law.'. . . Applicants point to a press release which states that the Volkswagen 'Supervisory Board directed the law firm Jones Day to share all findings of its independent investigation of the diesel matter with the DOJ. The Statement of Facts draws upon Day's extensive work, as well as on evidence developed by the DOJ.'")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal NY
Comment:

key case


Chapter: 48.306

Case Name: In re Ex parte Application of financialright GmbH, 17-mc-105 (DAB), 2017 U.S. Dist. LEXIS 107778 (S.D.N.Y. June 23, 2017)
(addressing plaintiffs' efforts to discover documents related to Jones Day's investigation into the "Volkswagen emissions scandal"; finding that attorney-client privilege and the work product doctrine protected documents related to the investigation, and that Jones Day did not waive either protection by disclosing protected documents to the government, pursuant to an agreement of which DOJ agreed to keep the documents confidential except if it decided in its "sole discretion" that it could disclose the documents to discharge its duties; "The Second Circuit, however, has declined to adopt a 'rigid rule' in 'situations in which [a government agency] and the disclosing party have entered into an explicit agreement that the [agency] will maintain the confidentiality of the disclosed materials.' Courts in this Circuit have varied in their approaches to such a situation and have held that waiver should be determined on a case-by-case basis."; "Jones Day, in assisting Volkswagen's cooperation with authorities, entered into a non-waiver agreement regarding privileged documents. The agreement states that while Jones Day will provide oral briefings and additional documents in connection with its VW investigation, 'to the extent any [privileged materials] are provided to DOJ pursuant to this agreement, VW does not intend to waive the protection of the attorney work product doctrine, attorney-client privilege, or any other privilege.'"; "The Court here is swayed by the cases holding that disclosures made pursuant to non-waiver agreements do not waive the protections of the work-product doctrine or attorney-client privilege, recognizing, among other factors the 'strong public interest in encouraging disclosure and cooperation with law enforcement agencies; [and that] violating a cooperating party's confidentiality expectations jeopardizes this public interest.'"; "Applicants point to the provision stating that DOJ was to keep any privileged materials confidential 'except to the extent that [it] determine[d] in its sole discretion that disclosure would be in furtherance of [its] discretion of its duties and responsibilities or is otherwise required by law.'. . . That the DOJ has such discretion does not change the Court's determination. While the agreement gives DOJ discretion, that discretion is cabined by the requirement that any disclosure would be in furtherance of it duties or otherwise required by law. Furthermore, courts making a selective-waiver determination have still held that there was no waiver when nearly identical discretionary provisions were at issue. E.g., In re Symbol Techs., 2016 U.S. Dist. LEXIS 139200, 2016 WL 8377036, at *14."; "Because the documents requested by Applicants may be covered by either attorney-client privilege or the work-product doctrine or both, and because those privileges have not been waived.")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal NY
Comment:

key case


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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2013-07-10 Federal NY B 4/14

Chapter: 48.306

Case Name: SEC v. Brady, 238 F.R.D. 429, 2006 U.S. Dist. LEXIS 74979, Civ. A. No. 3:05-CV-1416-M, 67 Fed. R. Serv. 3d (Callaghan) 26 (N.D. Tex. Oct. 16, 2006)
(analyzing attorney-client privilege and work product issues in an action by the SEC against a former corporate officer, who sought discovery of his former company's investigation into improper accounting and revenue recognition; explaining that the company's Audit Committee hired the law firm of Baker Botts to conduct an internal investigation with the assistance of KPMG, after which Baker Botts met with the company's new auditor Deloitte; finding that the company and Baker Botts waived work product protection by disclosing investigation-related work product to the SEC, but did not trigger a subject matter waiver; "Brady argues that i2's disclosure of documents to the government constituted a waiver of work product immunity because the government was either a potential adversary or actual adversary when the documents were exchanged. Waiver of work product protection only results if the work product is disclosed to an adversary or treated in a manner that substantially increases the likelihood that an adversary will come into possession of that material. . . . Even if confidential work product is produced to a potential adversary under a confidential agreement, that will not alter the objective fact that confidentiality has voluntarily been breached."; "Here, the affidavits show that i2 and Baker Botts were on notice that the SEC had begun an informal investigation that later developed into a formal investigation by March 26, 2003. Yet i2 and Baker Botts still disclosed privileged information and documents to government investigators, albeit under a confidentiality agreement. Nevertheless, this disclosure under a confidentiality agreement constituted a waiver of work product immunity, but waiver is limited to the documents actually disclosed. See Chubb, 103 F.R.D. at 67-68. Thus, Brady has met his burden to demonstrate that work product immunity was waived as to all documents produced by i2 and Baker Botts to the government. As noted above, these documents were subject to Category I and have already been produced."; "Brady argues that the waiver of work product immunity as to the documents disclosed to the SEC warrants full subject matter waiver of all documents pertaining to the investigation."; "Here, 'the facts relevant to a narrow issue' are not in dispute in this case. Additionally, it would not be unfair to limit the waiver to the actual documents disclosed because Brady is not being denied full access to the facts of the investigation. In fact, this Court has already stated that work product immunity protects documents not underlying facts. Brady still has the opportunity to use proper discovery tactics, such as depositions, to ascertain the underlying facts pertaining to both Phase I and Phase II of the investigation. Thus, the disclosure of work product to the SEC does not amount to full subject matter waiver.")

Case Date Jurisdiction State Cite Checked
2006-10-16 Federal TX
Comment:

key case


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 Jurisdiction State Cite Checked
2000-08-10 Federal VA

Chapter: 48.307

Case Name: In re Ex parte Application of financialright GmbH, 17-mc-105 (DAB), 2017 U.S. Dist. LEXIS 107778 (S.D.N.Y. June 23, 2017)
(addressing plaintiffs' efforts to discover documents related to Jones Day's investigation into the "Volkswagen emissions scandal"; finding that attorney-client privilege and the work product doctrine protected documents related to the investigation, and that Jones Day did not waive either protection by disclosing protected documents to the government, pursuant to an agreement of which DOJ agreed to keep the documents confidential except if it decided in its "sole discretion" that it could disclose the documents to discharge its duties; "The Second Circuit, however, has declined to adopt a 'rigid rule' in 'situations in which [a government agency] and the disclosing party have entered into an explicit agreement that the [agency] will maintain the confidentiality of the disclosed materials.' Courts in this Circuit have varied in their approaches to such a situation and have held that waiver should be determined on a case-by-case basis."; "Jones Day, in assisting Volkswagen's cooperation with authorities, entered into a non-waiver agreement regarding privileged documents. The agreement states that while Jones Day will provide oral briefings and additional documents in connection with its VW investigation, 'to the extent any [privileged materials] are provided to DOJ pursuant to this agreement, VW does not intend to waive the protection of the attorney work product doctrine, attorney-client privilege, or any other privilege.'"; "The Court here is swayed by the cases holding that disclosures made pursuant to non-waiver agreements do not waive the protections of the work-product doctrine or attorney-client privilege, recognizing, among other factors the 'strong public interest in encouraging disclosure and cooperation with law enforcement agencies; [and that] violating a cooperating party's confidentiality expectations jeopardizes this public interest.'"; "Applicants point to the provision stating that DOJ was to keep any privileged materials confidential 'except to the extent that [it] determine[d] in its sole discretion that disclosure would be in furtherance of [its] discretion of its duties and responsibilities or is otherwise required by law.'. . . That the DOJ has such discretion does not change the Court's determination. While the agreement gives DOJ discretion, that discretion is cabined by the requirement that any disclosure would be in furtherance of it duties or otherwise required by law. Furthermore, courts making a selective-waiver determination have still held that there was no waiver when nearly identical discretionary provisions were at issue. E.g., In re Symbol Techs., 2016 U.S. Dist. LEXIS 139200, 2016 WL 8377036, at *14."; "Because the documents requested by Applicants may be covered by either attorney-client privilege or the work-product doctrine or both, and because those privileges have not been waived.")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal NY
Comment:

key case


Chapter: 48.307

Case Name: In re Ex parte Application of financialright GmbH, 17-mc-105 (DAB), 2017 U.S. Dist. LEXIS 107778 (S.D.N.Y. June 23, 2017)
(addressing plaintiffs' efforts to discover documents related to Jones Day's investigation into the "Volkswagen emissions scandal"; concluding that U.S. law applied to privilege and work product issues; "One issue here is whether Volkswagen waived any privilege covering the documents in question. Jones Day says that it 'has never submitted its interview notes to WV or to the DoJ, or shared the content with the public, and it has not even commented publicly on its representation of [Volkswagen].'. . . In the course of cooperating with the DOJ criminal investigation, Jones Day entered into an agreement with the DOJ 'to preserve VW's claims of attorney-client privilege and work product protection for information disclosed to DOJ in the course of that cooperation.'. . . The agreement states that 'VW through its counsel Jones Day, intends to provide DOJ oral briefings regarding its investigation, and may furnish additional documents or other information to DOJ in connection with such oral briefings.'. . . The agreement further says that 'to the extent any [privileged materials] are provided to DOJ pursuant to this agreement, VW does not intend to waive the protection of the attorney work product doctrine, attorney-client privilege, or any other privilege.' (Id.) Under the agreement, DOJ was to keep any privileged materials confidential 'except to the extent that [it] determine[d] in its sole discretion that disclosure would be in furtherance of [its] discharge of its duties and responsibilities or is otherwise required by law.'. . . Applicants point to a press release which states that the Volkswagen 'Supervisory Board directed the law firm Jones Day to share all findings of its independent investigation of the diesel matter with the DOJ. The Statement of Facts draws upon Day's extensive work, as well as on evidence developed by the DOJ.'")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal NY
Comment:

key case


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 Jurisdiction 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 Jurisdiction 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)