Showing 111 of 111 results

Chapter: 50.2

Case Name: Townsend v. Nestle Healthcare Nutrition, Corp., Case No. 3:15-cv-06824, 2016 U.S. Dist. LEXIS 53918 (S.D.W. Va. April 22, 2016)
("Defendant has not attempted to invoke a subject matter waiver -- it has only requested production of any information already disclosed to the insurance company via the settlement evaluation and letters to insurance adjusters. Such a request is proper in light of Tweel's waiver of work product protection.")

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

Chapter: 50.2

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

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

Chapter: 50.2

Case Name: Skynet Elec. Co., Ltd. v. Flextronics Int'l, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372, at *10 (N.D. Cal. Dec. 16, 2013)
(discussing the different waiver standards for privilege and work product protection; finding that disclosure to a Taiwanese "patent attorney" did not waive work product protection, although those "patent attorneys" were not actually lawyers; "Waiver of work-product immunity does not, however, destroy work-product immunity for other documents of the same character.")

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

Chapter: 50.2

Case Name: Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2013 Del. Ch. LEXIS 23, at *41-42 (Del. Ch. Sept. 18, 2013)
(analyzing the scope of an implied waiver caused by defendant trust company's assertion of an advice of counsel defense in a lawsuit brought by beneficiaries; "I previously held that Wilmington Trust's advice-of-counsel waiver did not extend to attorney work product, unless the Beneficiaries can establish a substantial need for the materials and can show that they cannot obtain substantially equivalent material by other means. To the extent these limited communications directly addressing litigation strategy or potential liability do not qualify as work-product, they may be withheld because they fall outside the scope of the waiver.")

Case Date Jurisidction State Cite Checked
2013-09-18 State DE B 4/14

Chapter: 50.2

Case Name: City of Lakeland Emps. Pension Plan v. Baxter Int'l Inc., No. 10 C 6016, 2013 U.S. Dist. LEXIS 69433, at *6, *7-8, *8-9, *10 (N.D. Ill. May 16, 2013)
(analyzing a subject matter waiver in a work product context; "Appleton Papers [Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018 (7th Cir. 2012)] exposes the overbreadth of Baxter's claim that the work product doctrine 'does not protect the underlying facts of a given case from discovery.' Facts are the subject of discovery. But certain evidence of those facts is protected by the work product doctrine, namely 'documents and tangible things that are prepared in anticipation of litigation.'"; "[T]he test for subject matter waiver in the context of an assertion of work product protection is more demanding. The question of waiver of the work product doctrine turns not on whether there has been a prior disclosure of some portion of the information contained in the work product, but 'whether the specific assertions of privilege are reasonably consistent with the purpose for which the privilege was created.'" (citation omitted); "In the context of this case, that means that the plaintiff's use in the complaint of some of the factual information it obtained from the witnesses waives its work product claim as to materials that set forth the information disclosed. It does not, however, mean that the plaintiff has waived work product protection for all factual information the witnesses may have supplied."; "The question of the scope of a work product waiver turns on the scope of the disclosure; as set forth in Rule 502(a)(3), the waiver should extend only to information that 'ought in fairness . . . be considered together' with the information disclosed.")

Case Date Jurisidction State Cite Checked
2013-05-16 Federal IL B 3/14

Chapter: 50.2

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

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

Chapter: 50.2

Case Name: REC Software USA, Inc. v. Bamboo Solutions Corp., Case No. C11-0554JLR, 2013 U.S. Dist. LEXIS 12670, at *18-19 (W.D. Wash. Jan. 30, 2013)
(rejecting broad temporal waiver of the work product doctrine; "Under Microsoft's theory of subject matter waiver, if REC disclosed opinion work product on a precise subject to a non-party (thereby waiving any privilege), REC's counsel could no longer write down any mental impressions, conclusions, opinions, or legal theories on the same subject for the remainder of the case and expect such work product to be protected. In other words, disclosure of work product on a precise subject matter pre-litigation or at an early stage of the case would be fatal to any work product of the attorney on that same subject matter in the future. The court does not believe such a result comports in any way with the purpose behind the work product doctrine of strengthening the adversary process. Thus, the court declines to extend subject matter waiver to cover the Disputed Analysis contained in Report III.")

Case Date Jurisidction State Cite Checked
2013-01-30 Federal WA B 7/13

Chapter: 50.2

Case Name: REC Software USA, Inc. v. Bamboo Solutions Corp., Case No. C11-0554JLR, 2013 U.S. Dist. LEXIS 12670, at *12-13, *14, (15, *16-17 (W.D. Wash. Jan. 30, 2013)
(holding that waiver of the work product doctrine did not extend to opinion work product; "The scope of the waiver, however, must be narrowly tailored to cover only the precise subject matter of the waived disclosure, considering fairness in light of the underlying purpose of the work product doctrine."; "Attorneys' mental impressions, conclusions, opinions, and legal theories are most commonly referred to as 'opinion' work product (as opposed to 'ordinary' work product) and are afforded the utmost protection."; "Moreover, pure opinion work product is not likely to be used as evidence at trial. . . . Accordingly, unless a party affirmatively places attorney opinions at issue (referred to as 'issue injection') or engages in selective disclosure, disclosure of additional opinion work product is likely not justified."; "[B]ut the Ninth Circuit's waiver doctrine is narrow and only covers the precise subject matter of the disclosure for which the court found privilege to have been waived. Thus, each of REC's disclosures must be carefully examined for the precise subject matter disclosed, and none of the disclosures provided by Microsoft overlap with the content of the Disputed Analysis.")

Case Date Jurisidction State Cite Checked
2013-01-30 Federal WA B 7/13

Chapter: 50.2

Case Name: Ott v. City of Milwaukee, 291 F.R.D. 151, 155 (E.D. Wis. 2013)
("The principle of waiver applies more broadly to disclosure of materials protected by the attorney-client privilege than to work-product protection. . . . Generally, disclosure of a conversation protected by the attorney-client privilege waives the privilege as to the portion disclosed and all other communications relating to the subject matter. . . . However, disclosure of some documents does not necessarily destroy the work-product protection for documents of the same or similar character. . . . 'Undisclosed work product remains protected.'" (citation omitted))

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

Chapter: 50.2

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 630 (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; "[F]ederal law in the Eleventh Circuit does not recognize a subject matter waiver of opinion work-product immunity.")

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

Chapter: 50.2

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *24 (E.D. Va. Dec. 14, 2012)
("[W]hile Lawson has certainly waived privilege to that particular draft by producing it and failing to follow the procedures to attempt a 'clawback,' there is no broader subject-matter waiver of the work product doctrine that would require it to produce the other drafts of the document. Therefore, the Court finds that the drafts of the Dooner Declaration are properly withheld, notwithstanding Lawson's production of one of those drafts.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA

Chapter: 50.2

Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 688 n.6 (N.D. Ga. 2012)
("'The Court cannot find that Mr. Hercules waived the work product privilege in light of his sworn statement that he did not disclose any information to Pike's representatives at the time of his inspection as alleged by Pike. Moreover, to the extent such disclosure did in fact occur, the Court finds that any alleged partial disclosure does not extend so far as to effectuate a waiver of the entire subject matter of the investigation. 'Due to the sensitive nature of work product materials and the policy behind maintaining their secrecy, generally speaking, when work product protection has been waived, it is 'limited to the information actually disclosed, not subject matter waiver.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-01-01 Federal GA B 7/13

Chapter: 50.2

Case Name: Appleton Papers, Inc. v. EPA, 702 F.3d 1018, 1024, 1025 (7th Cir. 2012)
("API argues that by using some of the documents in support of the consent decrees with Fort James and Georgia-Pacific, the government waived protection for all of the documents API now seeks. API offers little support for its implicit premise that disclosure of some information results in disclosure of all of the material concerning the same subject. That principle applies more broadly to the attorney-client privilege, where disclosure of privileged information can destroy the privilege. Generally, a party that voluntarily discloses part of a conversation covered by the attorney-client privilege waives the privilege as to the portion disclosed and to all other communications relating to the same subject matter."; "In determining whether the government impliedly waived work product immunity for the documents API seeks, we determine whether the 'specific assertions of privilege are reasonably consistent with the purposes for which' the privilege was created. . . . Accordingly, 'disclosure of some documents does not necessarily destroy work-product protection for other documents of the same character.'" (citation omitted))

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

Chapter: 50.2

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

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

Chapter: 50.2

Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 290 n.33 (E.D. Va. 2004)
("The effect of the subject-matter waiver rule on the work product privilege, however, is quite different than its effect on the attorney-client privilege. Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 77 (E.D. Va. 1998). Indeed, the subject-matter waiver rule is much less sweeping as respects the work product privilege than the attorney-client privilege. Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1222-23 (4th Cir. 1976); Christian Coalition, 178 F.R.D. at 77.")

Case Date Jurisidction State Cite Checked
2004-01-01 Federal VA B 3/16

Chapter: 50.3

Case Name: Parker v. Allstate Indem. Co., At Law No. L96-702 (Va. Cir. Ct. Feb. 7, 1996)
(finding that plaintiff's bad faith claim against an insurance company put at issue the "defendant's mental state, and in particular, the mental state of the adjuster handling this claim" and ultimately denying plaintiff's claim for damages under his policy of insurance; ordering the insurance company to produce its entire file, including the adjuster's mental impressions and opinions)

Case Date Jurisidction State Cite Checked
1996-02-07 State VA

Chapter: 50.6

Case Name: United States v. Berkeley Heartlab, Inc., Civ. A. No. 9:14-cv-00230-RMB Consolidated with 9:11-cv-1593-RMG and 9:15-cv-2458-RMG, 2017 U.S. Dist. LEXIS 51691 (D.S.C. April 5, 2017)
(holding that defendant's advice of counsel defense resulted in a broad subject matter waiver, including even uncommunicated privileged documents; also finding that the subject matter waiver included work product protected documents; "Some courts have found that, when a party asserts an advice of counsel defense, the work product waiver only applies to work product that has been communicated to the party asserting the affirmative defense."; "Other courts have found that, when a party asserts an advice of counsel defense, the waiver of the work product protection extends to 'uncommunicated work product.'. . . In this case, the Court finds this second group of decisions more compelling because to oppose the BlueWave Defendants' advice of counsel defense, the Government must be able to discover the following about the relevant contracts and kick-back schemes: 'discover the information that was conveyed by [Defendants] to counsel and vice-versa; discover what facts were provided by [Defendants] to [their counsel]; discover what facts [Defendants' counsel] may have obtained from any other sources other than Defendants; discover the legal research conducted by and considered by [Defendants' counsel]; discover the opinions that [Defendants' counsel] gave [Defendants] and discover whether [Defendants] selectively ignored any of the facts and opinions given [them] by [their counsel] in reaching a decision. . .'"; "For this reason, the Court considers the scope of the work product waiver in this case to extend to uncommunicated work product.")

Case Date Jurisidction State Cite Checked
2017-04-05 Federal SC
Comment:

key case


Chapter: 50.6

Case Name: R.D. v. Shohola Camp Ground and Resort, Civ. No. 3:16-CV-1056, 2017 U.S. Dist. LEXIS 47562 (M.D. Pa. March 30, 2017)
(holding that a plaintiff which relied on excerpts of a video interview prepared by a private investigator to produce additional videotapes; "As a general rule, private investigator interviews conducted on behalf of counsel in preparation of litigation are encompassed by the work product privilege. Therefore, disclosure of these interviews typically may not be compelled, provided that the witness is available to be deposed."; "In some instances, parties may waive the privilege by selectively disclosing portions of privileged materials to some third parties. When this takes place, the issue then becomes assessing the proper scope of the waiver."; "Thus, when one party makes a tactical, selective waiver of the privilege as to a portion of some material it is incumbent upon the court to ensure that the waiver also encompasses any additional information which needs to be disclosed in order to avoid any unfair litigative advantage. However, given the importance of the privilege any expansion of a partial waiver should be limited and carefully defined and should only encompass that additional information which ought in fairness to be disclosed. Therefore, a limited waiver of the privilege by selective disclosure of some information should not be transformed into a wholesale waiver by the courts."; "This limited waiver analysis is intended solely to avoid permitting a party from inappropriately using the privilege as both a sword and a shield. In this setting, as we assess claims of unfairness flowing from a selective waiver of the privilege, we are mindful that: 'Unfairness may occur 'when a party attempts to use the communication in a litigation or where the party 'makes factual assertions, the truth of which can only be assessed by examination of the privileged communications.'"; "Judged by these standards, we note that the selective disclosure of the investigative interview of E.J., which occurred in the course of G.M.'s deposition was related to a specific topic: E.J.'s recollection concerning sexual contact and activity between E.J., N.S., G.M. and R.D. which may have occurred in the tent shared by these four boys during a camping excursion in 2007."; "We have now conducted a comparative analysis of this excerpt with the entirety of the videotaped interview of E.J., which has been provided to us as Exhibit B of the plaintiff's in camera submission."; "The entire videotape interview comprises approximately 1 hour and 58 seconds. . . . In our view, nothing which preceded the disclosed portion of the interview is so closely associated with the events described by E.J. that this limited waiver would compel the release of these initial portions of the videotaped interview. There are, however, three limited excerpts from the videotaped interview that take place later in the course of the interview which in our judgment directly relate to the disclosed portion of the interview, contain a recounting of E.J.'s recollection of this particular event, and would be necessary for a full, complete and completely fair understanding of this witness' recollection.")

Case Date Jurisidction State Cite Checked
2017-03-30 Federal PA
Comment:

key case


Chapter: 50.6

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; "Having concluded that the questions at issue in this case implicate attorney opinion work product, and that an exception applies in this unique context, the Court must determine the scope of the exception. As a result of the special protection afforded attorney opinion work product, the Court has described the exception recognized above as 'limited' when comparing it to the crime fraud exception. Based on such special protection, the proper reach of the exception in this case is limited to those documents and communications that bear directly on the Court's mandated determination that the guilty plea is made voluntarily, knowingly, and intelligently."; "In this matter, Defense counsel asserted his attorney work product protection, which is independent of Defendant's work product protection, in response to certain questions asked by the Court during Defendant's guilty plea hearing. Defendant did not assert such protections and answered all questions put to him by the Court, including questions regarding observance of his constitutional rights, and regarding his communications and relationship with Defense counsel. As the Court stated above, Defense counsel's failure to state an affirmative or negative response to the Court's questions raised doubt regarding the voluntariness of Defendant's guilty plea and the Defendant's knowing and intelligent waiver of his constitutional rights. However, as Defense counsel repeatedly stated at the guilty plea hearing and in his submissions to the Court, to the extent that the Court finds such responses to be necessary in determining whether Defendant's guilty plea is voluntary and Defendant's waiver of constitutional rights is knowing and intelligent, Defense counsel is prepared to make a limited waiver of his asserted attorney work product protection and respond to the Court's questions substantively."; "Because the Court has concluded that an exception to the attorney opinion work product doctrine applies on these unique facts, the Court ORDERS that all parties appear before the Court once again in order to allow the Court to inquire of Defense counsel regarding the existence of potential meritorious defenses or constitutional violations related to Defendant's case.")

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

Chapter: 50.6

Case Name: Carolina Casualty Ins. Co. v. Oahu Air Conditioning Service, Inc., No. 2:13-cv-1378 WBS AC, 2015 U.S. Dist. LEXIS 40786 (E.D. Cal. March 30, 2015)
(analyzing a situation in which an insurance company settled a claim against its insured after a hazard waste spill, and then sues the three companies which are allegedly responsible for packing the hazard waste; concluding that two out of the three defendants had entered into a common interest agreement, but that the third had not done so; "PCS [Defendants] asserts that plaintiff has waived the work product protection by disclosing the contents of notes from the claim file. The subject of the disclosed notes is the timing of when the plaintiff and plaintiff's law firm were first contacted about the fire and spill. . . . Plaintiff's claim of work product protection will therefore be overruled as to any documents in the claim file reflecting the timing of when plaintiff and its law firm were contacted about the incident.")

Case Date Jurisidction State Cite Checked
2015-03-30 Federal CA

Chapter: 50.6

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

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

Chapter: 50.6

Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

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

key case


Chapter: 50.6

Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

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

key case


Chapter: 50.6

Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

Case Date Jurisidction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 50.6

Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559 (S.D.N.Y. Nov. 5, 2013)
February 12, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part I"

All but a handful of courts find that companies disclosing privileged communications or protected work product to the government waive both of those protections. Courts properly analyzing waiver rules also recognize that disclosing historical facts does not cause a waiver – because historical facts are not privileged.

In two related cases, Judge Francis of the Southern District of New York dealt with the intersection of these basic principles. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559 (S.D.N.Y. Nov. 5, 2013), Weatherford retained Latham & Watkins and Davis Polk to conduct two separate corporate investigations into material weaknesses in the company's internal controls over financial reporting. The court acknowledged that both investigations deserved work product protection. However, the court also found that the company waived its privilege and fact (but not opinion) work product protection by disclosing information about the investigations to the SEC. In defining the scope of the resulting waiver, the court (1) rejected plaintiffs' argument that the waiver extended to "all materials relevant" to the investigations; (2) found that the waiver covered any material actually given to the SEC, and any oral representations company lawyers made to the SEC; and (3) held that the waiver also extended to any "underlying factual material explicitly referenced" in such material or representations. Id. At *28, *27.

Perhaps not surprisingly, the parties soon disagreed about the company's interpretation of the waiver's scope – which resulted in another opinion one month later. The next two Privilege Points describe that decision.

Case Date Jurisidction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 50.6

Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

Case Date Jurisidction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 50.6

Case Name: Carpenter Co. v. BASF SE (In re Urethane Antitrust Litig.), MDL No. 1616, Case No. 04-MD-1616-JWL, 2013 U.S. Dist. LEXIS 128353, at *39-40 (D. Kan. Sept. 5, 2013)
(holding that Dow's disclosure of some information about Dow's investigation into possible misconduct caused a subject matter waiver; "The undersigned finds that fairness demands that DAPs [direct-action plaintiffs] be allowed to examine the whole picture showing what allegations Barbour reported to Dow in 2004. At Dow's [defendant] explicit request, the court ruled that the parties could take discovery into whether Barbour [Dow's former employee] reported antitrust concerns to Dow in 2004, as opposed to for the first time during her deposition in 2010. . . . The undersigned has reviewed the Ella [Barbour/s former lawyer] memorandum in camera and finds that it contains information specifically addressing this topic which is favorable to DAPs' theory of events -- information that must be revealed to avoid a misleading presentation of the evidence to the disadvantage of DAPs. Thus, the undersigned finds that the Ella memorandum must be produced to DAPs under Rule 502, despite any privilege protection (including work-product protection or a joint-defense/common-interest privilege) which might otherwise attach to it." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-09-05 Federal KS B 4/14

Chapter: 50.6

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; "Draft versions of a declaration submitted by Heather Goodman of the consulting firm Two Labs Marketing to the D.C. federal district court in support of Astellas's [defendant] lawsuit against the FDA, as well as communications between Goodman and Astellas or outside counsel regarding the content of and revisions to that declaration, are protected by the work-product doctrine.")

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

Chapter: 50.6

Case Name: City of Glendale v. Nat'l Union Fire Ins. Co., No. CV-12-380-PHX-BSB, 2013 U.S. Dist. LEXIS 60711, at *59 (D. Ariz. Apr. 29, 2013)
(accessing privilege issues in a first party insurance case; holding that defendant insurance company triggered a subject matter waiver by relying on advice of counsel; further holding that the subject matter waiver extended beyond what the insurance company argued, but did not include documents that the lawyer had not provided to the insurance company; further holding that the subject matter waiver extended to the lawyer's advice to the insurance company on the same clauses but in different cases; "[T]he 'same subject matter' for waiver of the attorney-client privilege or the work product doctrine is the coverage advice provided to Defendants. Thus, the Court finds that uncommunicated analysis in outside counsel's files is not the same subject matter for purposes of waiver under Rule 502. Therefore, Defendants' disclosure of Henrichsen's October 24, 2011 opinion letter, and Campbell's August 30, 2011 e-mail summarizing LaBelle's advice, does not result in a waiver of work product protection for all documents in the law firms files related to the coverage analysis.")

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

Chapter: 50.6

Case Name: Manheim Auto. Fin. Servs. v. Oltmann (In re Oltmann), Ch. 7 Case No. 07-19488 HRT, Adv. No. 07-1753 HRT, 2013 Bankr. LEXIS 412, at *11-12 (D. Colo. Feb. 1, 2013)
(inexplicably finding that a litigant waived work product protection for an investigator's work by using information uncovered by the investigator in answering other discovery; "Where a party has made a voluntary disclosure of attorney work product, this case illustrates the importance of requiring a showing that the disclosure was made to achieve some tactical or strategic advantage in the litigation in order to find a subject matter waiver of the privilege. Here, the disclosure was made in the interest of satisfying the Plaintiff's discovery obligations and supplying information to the Defendant. Plaintiff did not use its disclosure of the information as a sword to gain an advantage in the litigation. It disclosed information to the Defendant from which he may locate the same potential witnesses and interview or depose them as part of his own preparation for trial. Here, the work product of Plaintiff's attorney was used in a manner fully consistent with the adversarial process. Destruction of the privilege based on such a disclosure would surely not serve the interests that the work product privilege is designed to advance or the interest of complete information exchange during pre-trial discovery; nor is it consistent with U.S. v. Nobles, 422 U.S. 225 (1975).")

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

Chapter: 50.6

Case Name: REC Software USA, Inc. v. Bamboo Solutions Corp., Case No. C11-0554JLR, 2013 U.S. Dist. LEXIS 12670, at *12-13, *14, (15, *16-17 (W.D. Wash. Jan. 30, 2013)
(holding that waiver of the work product doctrine did not extend to opinion work product; "The scope of the waiver, however, must be narrowly tailored to cover only the precise subject matter of the waived disclosure, considering fairness in light of the underlying purpose of the work product doctrine."; "Attorneys' mental impressions, conclusions, opinions, and legal theories are most commonly referred to as 'opinion' work product (as opposed to 'ordinary' work product) and are afforded the utmost protection."; "Moreover, pure opinion work product is not likely to be used as evidence at trial. . . . Accordingly, unless a party affirmatively places attorney opinions at issue (referred to as 'issue injection') or engages in selective disclosure, disclosure of additional opinion work product is likely not justified."; "[B]ut the Ninth Circuit's waiver doctrine is narrow and only covers the precise subject matter of the disclosure for which the court found privilege to have been waived. Thus, each of REC's disclosures must be carefully examined for the precise subject matter disclosed, and none of the disclosures provided by Microsoft overlap with the content of the Disputed Analysis.")

Case Date Jurisidction State Cite Checked
2013-01-30 Federal WA B 7/13

Chapter: 50.6

Case Name: JJK Mineral Co., LLC v. Swiger, 292 F.R.D. 323, 329 (N.D. W. Va. 2013)
(addressing the horizontal and temporal scope of an advice of counsel waiver; "Review of a sampling of cases from across the country reveals that, although there is no uniform bright line rule, the better position is that assertion of the advice of counsel defense waives the attorney client privilege with respect to communications between counsel and client with respect to the subject matter of the advice being sought but does not necessarily fully waive the opinion work product immunity.")

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

Chapter: 50.6

Case Name: JJK Mineral Co., LLC v. Swiger, 292 F.R.D. 323, 338 (N.D. W. Va. 2013)
(addressing the horizontal and temporal scope of an advice of counsel waiver; "JJK's right to know extends from the beginning of the process that led to any advice given by the Daniels Law Firm to Swiger that he had a valid right to prosecute said Mon County civil action against JJK. It is unknown when that process began. Only the Daniels Law Firm and Swiger know that date. That date must have been sometime in the continuum between when Swiger first consulted the Daniels Law Firm concerning the property dispute and when he filed the amended complaint joining JJK as a party defendant in the Mon County Civil Action. JJK's right to know ceases with the filing of the state court action against it. JJK is not entitled to the trial strategy developed by the Daniels Law Firm after the JJK was joined in the state court action. Nor is JJK entitled to attorney -client communications, fact work product and opinion work product solely dealing with Swiger's claims against the Wangs [who sole same property to plaintiff and to defendant] unless the same were also used in forming the opinion to bring JJK in to the state court action.")

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

Chapter: 50.6

Case Name: JTR Enters., LLC v. An Unknown Quantity of Columbian Emeralds, 297 F.R.D. 522, 531 (S.D. Fla. 2013)
("Federal Rule of Evidence 106 states that '[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part -- or any other writing or recorded statement -- that in fairness ought to be considered at the same time.'"; "We find that Motivation cannot reasonably expect to preserve confidentiality of its purported work-product -- the sworn statement of Lisa Martorano -- after voluntarily disclosing certain substantive components of it.")

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

Chapter: 50.6

Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 688 n.6 (N.D. Ga. 2012)
("'The Court cannot find that Mr. Hercules waived the work product privilege in light of his sworn statement that he did not disclose any information to Pike's representatives at the time of his inspection as alleged by Pike. Moreover, to the extent such disclosure did in fact occur, the Court finds that any alleged partial disclosure does not extend so far as to effectuate a waiver of the entire subject matter of the investigation. 'Due to the sensitive nature of work product materials and the policy behind maintaining their secrecy, generally speaking, when work product protection has been waived, it is 'limited to the information actually disclosed, not subject matter waiver.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-01-01 Federal GA B 7/13

Chapter: 50.6

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 607 (E.D. Va. 2010)
("To define the scope of the subject matter waiver, it is necessary to keep in mind that the controversial sentence in the press release revealed that DuPont had knowledge about Kolon's purpose in traveling to Richmond for that meeting that DuPont had learned from the FBI investigation. Thus, any communications (in DuPont's possession) from the FBI to DuPont containing factual information concerning Kolon's purpose in arranging for or attending the meeting that may have been protected as fact work product under the work product doctrine before the press release cannot be shielded now because DuPont chose to broadcast the substance of those communications to the public.")

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

Chapter: 50.6

Case Name: Luthman v. GEICO, 40 Va. Cir. 404, 405-06 (Va. Cir. Ct. 1996)
(adopting the reasoning of Hartman v. Banks, 164 F.R.D. 167 (E.D. Pa. 1995) and Reavis v. Metropolitan Property & Liability Ins. Co., 117 F.R.D. 160 (S.D. Cal. 1987), in holding that an insurance lawyer's entire files--including opinion work product--were discoverable despite the work product protection in a case involving a bad faith denial of insurance coverage claim; also noting that the insurance company impliedly waived the attorney-client privilege by asserting advice of counsel)

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

Chapter: 50.6

Case Name: Westvaco Corp. v. International Paper Co., No. CIV.A.3:90CV00601, 1991 WL 398677, at *6, *7 (E.D. Va. May 7, 1991)
("Voluntary production of complete documents is sufficient to waive even opinion work product privilege as to the produced documents and related documents. Typically, any voluntary production of documents waives the privilege as to all documents of the same subject matter produced prior to this voluntary waiver.")

Case Date Jurisidction State Cite Checked
1991-05-07 Federal VA

Chapter: 50.7

Case Name: Patrick v. City of Chicago, No. 14 C 3658, 2015 U.S. Dist. LEXIS 145811 (N.D. Ill. Oct. 28, 2015)
(holding that ineffective assistance of counsel claim resulted in a broad waiver of privilege and work product, but did not waive opinion work product;"Since the waiver in this case extends to conversations between Mr. Theis [Lawyer] and Mr. Patrick [Client] regarding the topics disclosed in the Petition and its attachments -- there may be multiple conversations that are discoverable -- the defendants need not turn over the documents referred to in paragraphs 6, 8, 9, 10 and 11 of the Index of Withheld Documents. There has there been no waiver of opinion work product, and thus any documents reflecting Mr. Theis's opinions, legal research, or strategies for the defense of the murder case need not be turned over.")

Case Date Jurisidction State Cite Checked
2015-10-28 Federal IL

Chapter: 50.7

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

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

Chapter: 50.7

Case Name: In re Weatherford Int'l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

Case Date Jurisidction State Cite Checked
2013-12-16 Federal NY B 3/16
Comment:

key case


Chapter: 50.7

Case Name: In re Weatherford Int'l Sec. Litig.., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

Case Date Jurisidction State Cite Checked
2013-12-16 Federal NY B 3/16
Comment:

key case


Chapter: 50.7

Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

Case Date Jurisidction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 50.7

Case Name: In re Weatherford Int'l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *28, *27 (S.D.N.Y. Nov. 5, 2013)
February 12, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part I"

All but a handful of courts find that companies disclosing privileged communications or protected work product to the government waive both of those protections. Courts properly analyzing waiver rules also recognize that disclosing historical facts does not cause a waiver – because historical facts are not privileged.

In two related cases, Judge Francis of the Southern District of New York dealt with the intersection of these basic principles. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559 (S.D.N.Y. Nov. 5, 2013), Weatherford retained Latham & Watkins and Davis Polk to conduct two separate corporate investigations into material weaknesses in the company's internal controls over financial reporting. The court acknowledged that both investigations deserved work product protection. However, the court also found that the company waived its privilege and fact (but not opinion) work product protection by disclosing information about the investigations to the SEC. In defining the scope of the resulting waiver, the court (1) rejected plaintiffs' argument that the waiver extended to "all materials relevant" to the investigations; (2) found that the waiver covered any material actually given to the SEC, and any oral representations company lawyers made to the SEC; and (3) held that the waiver also extended to any "underlying factual material explicitly referenced" in such material or representations. Id. at *28, *27.

Perhaps not surprisingly, the parties soon disagreed about the company's interpretation of the waiver's scope – which resulted in another opinion one month later. The next two Privilege Points describe that decision.

Case Date Jurisidction State Cite Checked
2013-11-05 Federal NY B 3/16
Comment:

key case


Chapter: 50.7

Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

Case Date Jurisidction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 50.7

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

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

Chapter: 50.7

Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at 51-52 (S.D. Ga. May 8, 2013)
(in an employment discrimination case against celebrity Paula Deen and her brother "Bubba" Hiers, ultimately concluding that Deen's three outside consultants were outside the attorney-client privilege protection; rejecting Deen's functional equivalent argument; "Likewise exempt from the subject matter waiver discussed supra (but not the third-party waiver) is any of Gerard's [outside counsel, who had both law-related and human resources responsibilities] communications bearing pure opinion work product, as opposed to factual-investigation matters. '[A] subject matter waiver of the attorney-client privilege or work-product doctrine does not extend to opinion work product, which is defined as material that reflects an attorney's mental impressions, conclusions, opinions, or legal theories.'. . . By way of example, if Jackson complained to Gerard about Hiers' abusive conduct and Gerard made a file note about the complaint, then that is discoverable, but if he researched discrimination law and jotted down on that same note his legal advice to Paula Deen about how to address potential legal exposure, then that advice shall be redacted from the note prior to disclosure. In contrast, 100% of that communication must be disclosed if it was emailed to any or all of the third-party agents or any other third party.")

Case Date Jurisidction State Cite Checked
2013-05-08 Federal GA B 8/13

Chapter: 50.7

Case Name: Manheim Auto. Fin. Servs. v. Oltmann (In re Oltmann), Ch. 7 Case No. 07-19488 HRT, Adv. No. 07-1753 HRT, 2013 Bankr. LEXIS 412, at *4 (D. Colo. Feb. 1, 2013)
(inexplicably finding that a litigant waived work product protection for an investigator's work by using information uncovered by the investigator in answering other discovery; "As to opinion work product that reflects the 'mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative,' FED. R. CIV. P. 26(b)(3)(B), subject matter waiver is inapplicable. . . . Therefore, if any subject matter waiver has occurred, the waiver could only apply to non-opinion work product.")

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

Chapter: 50.7

Case Name: N.H. Ins. Co. v. Blackjack Cove, LLC, Case No. 3:10-0607, 2013 U.S. Dist. LEXIS 13196, at *17 (M.D. Tenn. Jan. 31, 2013)
("[B]y producing certain 'fact' work product, it has not waived any privilege with regard to 'opinion' work product.")

Case Date Jurisidction State Cite Checked
2013-01-31 Federal TN B 1/14

Chapter: 50.7

Case Name: REC Software USA, Inc. v. Bamboo Solutions Corp., Case No. C11-0554JLR, 2013 U.S. Dist. LEXIS 12670, at *12-13, *14, (15, *16-17 (W.D. Wash. Jan. 30, 2013)
(holding that waiver of the work product doctrine did not extend to opinion work product; "The scope of the waiver, however, must be narrowly tailored to cover only the precise subject matter of the waived disclosure, considering fairness in light of the underlying purpose of the work product doctrine."; "Attorneys' mental impressions, conclusions, opinions, and legal theories are most commonly referred to as 'opinion' work product (as opposed to 'ordinary' work product) and are afforded the utmost protection."; "Moreover, pure opinion work product is not likely to be used as evidence at trial. . . . Accordingly, unless a party affirmatively places attorney opinions at issue (referred to as 'issue injection') or engages in selective disclosure, disclosure of additional opinion work product is likely not justified."; "[B]ut the Ninth Circuit's waiver doctrine is narrow and only covers the precise subject matter of the disclosure for which the court found privilege to have been waived. Thus, each of REC's disclosures must be carefully examined for the precise subject matter disclosed, and none of the disclosures provided by Microsoft overlap with the content of the Disputed Analysis.")

Case Date Jurisidction State Cite Checked
2013-01-30 Federal WA B 7/13

Chapter: 50.7

Case Name: Shared Med. Res., LLC v. Histologics, LLC, No. SACV 12 0612 DOC (RNBx), 2012 U.S. Dist. LEXIS 164336, at *12 (C.D. Cal. Nov. 14, 2012)
("If Plaintiff does decide to rely on attorney-client privileged information in its Opposition, then it will have generated a waiver applicable to all other attorney-client communications relating to the same subject matter. . . . However, if Plaintiff decides to affirmatively rely on privileged work-product, then it will have not have generated a broad waiver, but rather one of all 'factual' or 'non-opinion' work-product related to the same subject matter.")

Case Date Jurisidction State Cite Checked
2012-11-14 Federal CA B 7/13

Chapter: 50.7

Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 257 (E.D. Va. 2012)
("The type of privilege invoked is important to ascertain, because waiver of opinion work product is treated differently from waiver of fact work product and attorney-client privilege in the Fourth Circuit. See E.I. DuPont de Nemours & Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 605 (E.D. Va. 2010). The scope of opinion work product waiver is more limited than other types of waiver. Waiver occurs as to the documents or opinion 'actually disclosed,' instead of as to the entire subject matter. Id. at 606 (quoting In re Mut. Funds Inv. Litig., 251 F.R.D. 185, 187 (D. Md. 2008)). If a document contains both opinion work product and fact work product, then the Court must 'review the material and redact the legal theories and mental impressions from the otherwise discoverable materials.' Id. (citations omitted).")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA B 3/16

Chapter: 50.7

Case Name: E.I. DuPont De Nemours & Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 606 (E.D. Va. 2010)
("Although fact work product and attorney client privilege may be waived through disclosure of but one document on the subject, 'waiver of the opinion work product protection [is] limited to the documents actually disclosed.' In re Mut. Funds Inv. Litig., 251 F.R.D. 185, 187 (D. Md. 2008). When protected opinion work product is commingled with fact work product that must be disclosed under subject matter waiver, the proper method of preventing disclosure of opinion work product is for the Court to review the material and redact the legal theories and mental impressions from the otherwise discoverable materials. [In re] Martin Marietta, 856 F. 2d [619,] 626 [(4th Cir. 1988)].")

Case Date Jurisidction State Cite Checked
2010-01-01 Federal VA B 3/16

Chapter: 50.7

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 603, 605, 607,608, 608, 608 (E.D. Va. 2010)
(analyzing the waiver effect of DuPont's press release about a former employee who gave DuPont secrets to a competitor; explaining that the press release contained the following language; "'[t]he FBI Investigation has revealed that, in August 2008, three Kolon managers flew to Richmond, the location of our global Kevlar® technology and business headquarters, expressly for the purpose of obtaining confidential DuPont process technology.'"; holding that the press release triggered a waiver, by limiting the scope of the waiver and finding that it did not cover opinion work product; "Waiver may occur by testimonial use, DuPont v. Kolon, 2010 U.S. Dist. LEXIS 36530, 2010 WL 1489966, at *4, or public revelation, e.g., Tri-County Paving, Inc. v. Ashe County, 2000 U.S. Dist. LEXIS 19563, at *12 (W.D.N.C. Oct. 5, 2000). As the Court recently concluded, by sharing information privately with an interested Government agency, DuPont did not waive the work product protection, so long as the Government is not in a position adversarial to the disclosing party, and so long as the disclosing party maintains a reasonable expectation that the Government will not further disclose the information. DuPont v. Kolon, 2010 U.S. Dist. LEXIS 36530, [WL] at *8. However, public disclosure of information, particularly when the disclosing party voluntarily broadcasts the information in media channels, is quite different; it destroys any expectation of privacy for the disclosed information."; "[T]he waiver extends only to 'the subject matter revealed. Hawkins, 148 F.3d at 384 n.4. A party cannot artificially expand the scope of the subject matter to create a waiver that is broader than that of the disclosure that waives the protection. Id. Thus the scope of the waiver is measured by the substance of the protected information that has been publicly disclosed. Here, the disclosure in the press release is a limited one. It pertains to one meeting and to the purpose for that meeting."; "A disclosure of that information does not support a finding that DuPont has waived work product protection to all communications in DuPont's possession relating to the Government's investigation of Mitchell and Kolon. That is because the published protected information related to one meeting and Kolon's purpose in arranging for it. To find that the statement about the purpose of the meeting effectuated the broad waiver urged by Kolon would be to ignore that DuPont actually published. Indeed, to accept Kolon's proposed scope would be to issue a fishing license far beyond the proper scope of DuPont's waiver, and, in the process, it would eviscerate the principle that the scope of the waiver is confined to the substance that was published. Without a constraint of this nature, any waiver of work product would effectively reach all of a lawyer's work in a case and would not be a 'subject matter' waiver."; "The fact work product on this subject matter (as previously defined) must be produced under familiar principles of waiver jurisprudence. However, a waiver of opinion work product is more limited."; "Opinion work product, which enjoys near absolute immunity from discovery, may require disclosure under the subject matter waiver doctrine 'in extreme circumstances.' Id. When 'work product [ concerns activities of counsel that are directly in issue,' courts have not hesitated to find subject matter waiver. Charlotte Motor Speedway, Inc. v. International Ins. Co., 125 F.R.D. 127, 130 (M.D.N.C. 1989); see also In re Doe, 662 F.2d 1073, 1079-80 (4th Cir. 1981) (observing that 'only extraordinary circumstances requiring disclosure permit piercing the work product doctrine,' and finding such circumstances 'when an attorney, charged as a fiduciary in the administration of justice, attempts to use the opinion work product rule to shield himself from criminal prosecution arising from his actions in prior litigation'); Cincinnati Ins. Co. v. Zurich Ins. Co., 198 F.R.D. 81, 87 (W.D.N.C. 2000) (finding opinion work product protection waived by a party's selective disclosure of information about an attorney's opinion on settlement valuation when the party intended to offer the attorney's opinion at trial); Vaughan Furniture, 156 F.R.D. 123, 127-28 (M.D.N.C. 1994) (finding 'an exception to the near inviolability of opinion work product' when a party designates as an expert witness the attorney who produced that work product); Cornett Mgmt. Co., LLC v. Lexington Ins. Co., 2007 U.S. Dist. LEXIS 28516, at *17-18 (N.D. W. Va. Apr. 17, 2007) (finding that the plaintiff waived opinion work product protection waived when the plaintiff placed in issue its communications with counsel that the defendant insurer had retained to defend the plaintiff in earlier litigation)."; "The conduct of DuPont's counsel certainly does not approach the egregious examples that prompted, in those decisions, findings of a waiver of opinion work product. It is true that publication of the statement of purpose, in part, reflected counsel's opinion. But, counsel's conduct in expressing opinion in the press release was not the sort of extraordinary circumstance that warrants the piercing of counsel's opinion. To hold otherwise would be to invite a waiver of opinion work product every time a press release is issued by a litigant, or, as Kolon would have it, a complaint is filed in court. And, it would trench impermissibly on the near inviolate protection given opinion work product under the controlling law of this circuit." (footnote omitted); also finding DuPont's adversary Kolon had not established sufficient need to overcome DuPont's work product protection)

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

Chapter: 50.7

Case Name: Luthman v. GEICO, 40 Va. Cir. 404, 405-06 (Va. Cir. Ct. 1996)
(adopting the reasoning of Hartman v. Banks, 164 F.R.D. 167 (E.D. Pa. 1995) and Reavis v. Metropolitan Property & Liability Ins. Co., 117 F.R.D. 160 (S.D. Cal. 1987), in holding that an insurance lawyer's entire files--including opinion work product--were discoverable despite the work product protection in a case involving a bad faith denial of insurance coverage claim; also noting that the insurance company impliedly waived the attorney-client privilege by asserting advice of counsel)

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

Chapter: 50.7

Case Name: Westvaco Corp. v. International Paper Co., No. CIV.A.3:90CV00601, 1991 WL 398677, at *6, *7 (E.D. Va. May 7, 1991)
("Voluntary production of complete documents is sufficient to waive even opinion work product privilege as to the produced documents and related documents. Typically, any voluntary production of documents waives the privilege as to all documents of the same subject matter produced prior to this voluntary waiver.")

Case Date Jurisidction State Cite Checked
1991-05-07 Federal VA

Chapter: 50.7

Case Name: Fed. Election Comm'n v. Christian Coal., 178 F.R.D. 61, 77 n.15 (E.D. Va. 1998)
("In the Fourth Circuit, there is a major difference between opinion and non-opinion work product when it comes to the doctrine of subject matter waiver. Specifically, revealing nonopinion work product to an adversary works a subject matter waiver of all non-opinion work product. However, there can be no subject matter waiver of opinion work product. The Fourth Circuit has previously rejected the limited waiver concept as to the attorney-client privilege and as to non-opinion work product. We have embraced the limited waiver concept as to opinion work product." (citing In re Martin Marietta Corp., 856 F.2d 619, 623, 625-26 (4th Cir. 1988))), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

Case Date Jurisidction State Cite Checked
1988-01-01 Federal VA B 3/16

Chapter: 50.7

Case Name: In re Martin Marietta Corp., 856 F.2d 619, 625-26 (4th Cir. 1988)
("pure mental impressions severable from the underlying data" were not subject to the broad subject matter waiver, for two reasons: (i) "opinion work product is to be accorded great protection by the courts"; and (ii) the "underlying rationale for the doctrine of subject matter waiver has little application in the context of a pure expression of legal theory or legal opinion" because "[t]here is relatively little danger that a litigant will attempt to use a pure mental impression or legal theory as a sword and as a shield in the trial of a case so as to distort the factfinding process"), cert. denied, 490 U.S. 1011 (1989)

Case Date Jurisidction State Cite Checked
1988-01-01 Federal

Chapter: 50.7

Case Name: In re Martin Marietta Corp., 856 F.2d 619, 625 (4th Cir. 1988)
(finding that sharing work product with the government did not waive the protection for opinion work product), cert. denied, 490 U.S. 1011 (1989)

Case Date Jurisidction State Cite Checked
1988-01-01 Federal

Chapter: 50.8

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

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

Chapter: 50.8

Case Name: Koss v. Palmer Water Dep't, Civ. A. No. 12-30170-MAP, 2013 U.S. Dist. LEXIS 144702, at *7-8 (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; concluding that defendants waived work product protection by asserting the Faragher-Ellerth defense, but did not have to disclose post-investigation communications between defendants' lawyer and investigator; "Defendants' argument with respect to their use of documents has some resonance with respect to certain of Royal LLP's [defendants' lawyers] and Mr. Rigali's [investigator assisting defendants] post-investigation communications. . . . "[W]hile Defendants' affirmative defense waives the attorney-client privilege and work-product protection for the bulk of the documents submitted for in camera review, the court concludes that some redactions are nonetheless appropriate, namely, those parts which contain communications directly between Royal LLP and Defendants, as distinct from Mr. Rigali, and/or constitute materials unrelated to the investigation.")

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

Chapter: 50.8

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

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

Chapter: 50.401

Case Name: B.M.I. Interior Yacht Refinishing, Inc. v. M/Y Claire, Case No. 13-62676-CIV-Williams/SIMONTON, 2015 U.S. Dist. LEXIS 91903 (S.D. Fla. July 15, 2015)
(analyzing waiver issues in connection with a non-testifying expert; "Nautical claims that by orally disclosing some or any portion of Guy Clifford's Report, the work product protection has been destroyed as to the entire Report. However, courts have held that due to the sensitive nature of work product materials and the policy behind maintaining their secrecy, generally speaking, when work product protection has been waived, it is limited to the information actually disclosed."; "This limitation is particularly adhered to where the disclosure at issue pertains to work product held or created by a nontestifying expert, as in this case. . . . Even where a court finds that a party waived protections afforded to non testifying experts, the waiver may be limited in scope."; "'The undersigned notes that, as observed in Murray v. Southern Route Mar., S.A., No. C12-1854RSL, 2014 U.S. Dist. LEXIS 58852, 2014 WL 1671581, at *1-3 (W.D. Wash. April 28, 2014), a number of courts have questioned whether the non-testifying expert privilege under Rule 26(b)(4)(B), can ever be waived. . . (collecting cases addressing waiver in context of non-testifying expert disclosure).'")

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

Chapter: 50.401

Case Name: Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc. Case No. 13-23881-CIV-MARTINEZ/GOODMAN, 2014 U.S. Dist. LEXIS 80757, at *25 (S.D. Fla. June 13, 2014)
("With work product protected materials, disclosure operates only to waive the protection for the actual material disclosed, not other materials.")

Case Date Jurisidction State Cite Checked
2014-06-13 Federal FL

Chapter: 50.401

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *22 (E.D. Va. Dec. 14, 2012)
("It is well-settled that 'where a party makes testimonial use of work product material, the [work product] privilege is waived with respect to matters covered in the testimony.' Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1223 (4th Cir. 1976) (citing United States v. Nobles, 422 U.S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975)). However, our Circuit has held that 'broad concepts of subject matter waiver analogous to those applicable to claims of attorney-client privilege are inappropriate when applied to' work product. Id. at 1222.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA

Chapter: 50.401

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *22-23 (E.D. Va. Dec. 14, 2012)
("[T]he production of the final draft of a document waives work product protection as to that draft. Nevertheless, this does not lead to the waiver of work product protection for the earlier drafts of the document. This position is in line with the general view that the waiver of the work product protection as to the final draft of a document does not constitute a waiver of the earlier versions of the draft."; "This rule serves to protect from disclosure earlier drafts of the declarations and affidavits that were ultimately filed with the Court. . . . The factual communications underlying those drafts are not privileged as attorney-client communications since they are prepared with the intention of being disclosed to third parties. However, the earlier drafts retain work product protection, presuming that the log claims them as such.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA

Chapter: 50.401

Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 688 n.6 (N.D. Ga. 2012)
("'The Court cannot find that Mr. Hercules waived the work product privilege in light of his sworn statement that he did not disclose any information to Pike's representatives at the time of his inspection as alleged by Pike. Moreover, to the extent such disclosure did in fact occur, the Court finds that any alleged partial disclosure does not extend so far as to effectuate a waiver of the entire subject matter of the investigation. 'Due to the sensitive nature of work product materials and the policy behind maintaining their secrecy, generally speaking, when work product protection has been waived, it is 'limited to the information actually disclosed, not subject matter waiver.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-01-01 Federal GA B 7/13

Chapter: 50.401

Case Name: QBE Ins. Corp. v. Jorda Enters., Inc., 286 F.R.D. 661, 666-67 (S.D. Fla. 2012)
(holding that a litigant cannot rely on privileged documents filed in camera to avoid Rule 11 sanctions without producing them to the adversary; "Unlike waiver of attorney-client material, work-product waiver, however, is not a broad waiver of all work-product related to the same subject matter. Instead, it extends only to 'factual' or 'non-opinion' work-product concerning the same subject matter as the disclosed work-product.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal FL
Comment:

key case


Chapter: 50.401

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 603, 605, 607,608, 608, 608 (E.D. Va. 2010)
(analyzing the waiver effect of DuPont's press release about a former employee who gave DuPont secrets to a competitor; explaining that the press release contained the following language; "'[t]he FBI Investigation has revealed that, in August 2008, three Kolon managers flew to Richmond, the location of our global Kevlar® technology and business headquarters, expressly for the purpose of obtaining confidential DuPont process technology.'"; holding that the press release triggered a waiver, by limiting the scope of the waiver and finding that it did not cover opinion work product; "Waiver may occur by testimonial use, DuPont v. Kolon, 2010 U.S. Dist. LEXIS 36530, 2010 WL 1489966, at *4, or public revelation, e.g., Tri-County Paving, Inc. v. Ashe County, 2000 U.S. Dist. LEXIS 19563, at *12 (W.D.N.C. Oct. 5, 2000). As the Court recently concluded, by sharing information privately with an interested Government agency, DuPont did not waive the work product protection, so long as the Government is not in a position adversarial to the disclosing party, and so long as the disclosing party maintains a reasonable expectation that the Government will not further disclose the information. DuPont v. Kolon, 2010 U.S. Dist. LEXIS 36530, [WL] at *8. However, public disclosure of information, particularly when the disclosing party voluntarily broadcasts the information in media channels, is quite different; it destroys any expectation of privacy for the disclosed information."; "[T]he waiver extends only to 'the subject matter revealed. Hawkins, 148 F.3d at 384 n.4. A party cannot artificially expand the scope of the subject matter to create a waiver that is broader than that of the disclosure that waives the protection. Id. Thus the scope of the waiver is measured by the substance of the protected information that has been publicly disclosed. Here, the disclosure in the press release is a limited one. It pertains to one meeting and to the purpose for that meeting."; "A disclosure of that information does not support a finding that DuPont has waived work product protection to all communications in DuPont's possession relating to the Government's investigation of Mitchell and Kolon. That is because the published protected information related to one meeting and Kolon's purpose in arranging for it. To find that the statement about the purpose of the meeting effectuated the broad waiver urged by Kolon would be to ignore that DuPont actually published. Indeed, to accept Kolon's proposed scope would be to issue a fishing license far beyond the proper scope of DuPont's waiver, and, in the process, it would eviscerate the principle that the scope of the waiver is confined to the substance that was published. Without a constraint of this nature, any waiver of work product would effectively reach all of a lawyer's work in a case and would not be a 'subject matter' waiver."; "The fact work product on this subject matter (as previously defined) must be produced under familiar principles of waiver jurisprudence. However, a waiver of opinion work product is more limited."; "Opinion work product, which enjoys near absolute immunity from discovery, may require disclosure under the subject matter waiver doctrine 'in extreme circumstances.' Id. When 'work product [ concerns activities of counsel that are directly in issue,' courts have not hesitated to find subject matter waiver. Charlotte Motor Speedway, Inc. v. International Ins. Co., 125 F.R.D. 127, 130 (M.D.N.C. 1989); see also In re Doe, 662 F.2d 1073, 1079-80 (4th Cir. 1981) (observing that 'only extraordinary circumstances requiring disclosure permit piercing the work product doctrine,' and finding such circumstances 'when an attorney, charged as a fiduciary in the administration of justice, attempts to use the opinion work product rule to shield himself from criminal prosecution arising from his actions in prior litigation'); Cincinnati Ins. Co. v. Zurich Ins. Co., 198 F.R.D. 81, 87 (W.D.N.C. 2000) (finding opinion work product protection waived by a party's selective disclosure of information about an attorney's opinion on settlement valuation when the party intended to offer the attorney's opinion at trial); Vaughan Furniture, 156 F.R.D. 123, 127-28 (M.D.N.C. 1994) (finding 'an exception to the near inviolability of opinion work product' when a party designates as an expert witness the attorney who produced that work product); Cornett Mgmt. Co., LLC v. Lexington Ins. Co., 2007 U.S. Dist. LEXIS 28516, at *17-18 (N.D. W. Va. Apr. 17, 2007) (finding that the plaintiff waived opinion work product protection waived when the plaintiff placed in issue its communications with counsel that the defendant insurer had retained to defend the plaintiff in earlier litigation)."; "The conduct of DuPont's counsel certainly does not approach the egregious examples that prompted, in those decisions, findings of a waiver of opinion work product. It is true that publication of the statement of purpose, in part, reflected counsel's opinion. But, counsel's conduct in expressing opinion in the press release was not the sort of extraordinary circumstance that warrants the piercing of counsel's opinion. To hold otherwise would be to invite a waiver of opinion work product every time a press release is issued by a litigant, or, as Kolon would have it, a complaint is filed in court. And, it would trench impermissibly on the near inviolate protection given opinion work product under the controlling law of this circuit." (footnote omitted); also finding DuPont's adversary Kolon had not established sufficient need to overcome DuPont's work product protection)

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

Chapter: 50.403

Case Name: In re Intuitive Surgical Sec. Litig., Case No. 5:13-cv-01920-EJD (HRL), 2017 U.S. Dist. LEXIS 54731 (N.D. Cal. April 10, 2017)
(analyzing plaintiff's disclosure of memos about interviews with a confidential witness; explaining that the plaintiff had withdrawn the witness's statements in its amended complaint; holding that the defendant could not obtain discovery of plaintiff's lawyer's notes of an interview with the confidential witness; "Plaintiffs say that they have produced all their final memos concerning the Endweiss interviews, and they argue that is as far as any waiver of the work product protection extends. Production of those final memos, say plaintiffs, does not waive work product protection over any interview notes. Plaintiffs maintain that the notes are opinion work product for which defendants have no compelling need."; "To the extent defendants suggest that the submission of the investigators' declarations and memos in court filings effected a broad subject matter waiver of any work product protection applicable to communications with Endweiss, their argument is rejected. The determination whether there has been any waiver is rooted in principles of fairness."; "Plaintiffs, in effect, voluntarily sought permission to withdraw the Endweiss statements via an amended complaint. Whatever work product materials they relied on in making that request apparently were submitted with their briefing. Judge Davila granted plaintiffs' motion to amend. Plaintiffs amended their complaint. The Endweiss statements are gone. Defendants have not persuasively explained why they need any more notes or memos or associated metadata to defend against plaintiffs' securities fraud allegations.")

Case Date Jurisidction State Cite Checked
2017-04-10 Federal CA

Chapter: 50.403

Case Name: R.D. v. Shohola Camp Ground and Resort, Civ. No. 3:16-CV-1056, 2017 U.S. Dist. LEXIS 47562 (M.D. Pa. March 30, 2017)
(holding that a plaintiff which relied on excerpts of a video interview prepared by a private investigator to produce additional videotapes; "As a general rule, private investigator interviews conducted on behalf of counsel in preparation of litigation are encompassed by the work product privilege. Therefore, disclosure of these interviews typically may not be compelled, provided that the witness is available to be deposed."; "In some instances, parties may waive the privilege by selectively disclosing portions of privileged materials to some third parties. When this takes place, the issue then becomes assessing the proper scope of the waiver."; "Thus, when one party makes a tactical, selective waiver of the privilege as to a portion of some material it is incumbent upon the court to ensure that the waiver also encompasses any additional information which needs to be disclosed in order to avoid any unfair litigative advantage. However, given the importance of the privilege any expansion of a partial waiver should be limited and carefully defined and should only encompass that additional information which ought in fairness to be disclosed. Therefore, a limited waiver of the privilege by selective disclosure of some information should not be transformed into a wholesale waiver by the courts."; "This limited waiver analysis is intended solely to avoid permitting a party from inappropriately using the privilege as both a sword and a shield. In this setting, as we assess claims of unfairness flowing from a selective waiver of the privilege, we are mindful that: 'Unfairness may occur 'when a party attempts to use the communication in a litigation or where the party 'makes factual assertions, the truth of which can only be assessed by examination of the privileged communications.'"; "Judged by these standards, we note that the selective disclosure of the investigative interview of E.J., which occurred in the course of G.M.'s deposition was related to a specific topic: E.J.'s recollection concerning sexual contact and activity between E.J., N.S., G.M. and R.D. which may have occurred in the tent shared by these four boys during a camping excursion in 2007."; "We have now conducted a comparative analysis of this excerpt with the entirety of the videotaped interview of E.J., which has been provided to us as Exhibit B of the plaintiff's in camera submission."; "The entire videotape interview comprises approximately 1 hour and 58 seconds. . . . In our view, nothing which preceded the disclosed portion of the interview is so closely associated with the events described by E.J. that this limited waiver would compel the release of these initial portions of the videotaped interview. There are, however, three limited excerpts from the videotaped interview that take place later in the course of the interview which in our judgment directly relate to the disclosed portion of the interview, contain a recounting of E.J.'s recollection of this particular event, and would be necessary for a full, complete and completely fair understanding of this witness' recollection.")

Case Date Jurisidction State Cite Checked
2017-03-30 Federal PA
Comment:

key case


Chapter: 50.403

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; "Having concluded that the questions at issue in this case implicate attorney opinion work product, and that an exception applies in this unique context, the Court must determine the scope of the exception. As a result of the special protection afforded attorney opinion work product, the Court has described the exception recognized above as 'limited' when comparing it to the crime fraud exception. Based on such special protection, the proper reach of the exception in this case is limited to those documents and communications that bear directly on the Court's mandated determination that the guilty plea is made voluntarily, knowingly, and intelligently."; "In this matter, Defense counsel asserted his attorney work product protection, which is independent of Defendant's work product protection, in response to certain questions asked by the Court during Defendant's guilty plea hearing. Defendant did not assert such protections and answered all questions put to him by the Court, including questions regarding observance of his constitutional rights, and regarding his communications and relationship with Defense counsel. As the Court stated above, Defense counsel's failure to state an affirmative or negative response to the Court's questions raised doubt regarding the voluntariness of Defendant's guilty plea and the Defendant's knowing and intelligent waiver of his constitutional rights. However, as Defense counsel repeatedly stated at the guilty plea hearing and in his submissions to the Court, to the extent that the Court finds such responses to be necessary in determining whether Defendant's guilty plea is voluntary and Defendant's waiver of constitutional rights is knowing and intelligent, Defense counsel is prepared to make a limited waiver of his asserted attorney work product protection and respond to the Court's questions substantively."; "Because the Court has concluded that an exception to the attorney opinion work product doctrine applies on these unique facts, the Court ORDERS that all parties appear before the Court once again in order to allow the Court to inquire of Defense counsel regarding the existence of potential meritorious defenses or constitutional violations related to Defendant's case.")

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

Chapter: 50.403

Case Name: Nichol v. City of Springfield, No. 6:14-cv-1983-AA, 2015 U.S. Dist. LEXIS 169901 (D. Ore. Dec. 18, 2015)
(finding that plaintiff's friend could create protected work product even though the friend was not the plaintiff's "representative"; finding that the defendant cannot overcome the work product protection; finding that the plaintiff did not waive the work product protection by producing arguably similar documents; "[P]laintiff voluntarily produced a set of materials related to her communications with Umenhofer [Plaintiff's friend who had also been terminated by the police department and also filed a lawsuit against the same defendants]. By producing those materials, defendants argue, plaintiff (1) effectively conceded materials prepared by Umenhofer are not subject to work product protection; and (2) attempted to 'have it both ways' by 'withholding only the most damaging documents.'. . . The court's in camera review affirms the Umenhofer Documents are qualitatively different from the produced documents: while the Umenhofer Documents contain advice from Umenhofer to plaintiff regarding strategy for her DPSST hearing and this lawsuit, the other documents contain no such advice.")

Case Date Jurisidction State Cite Checked
2015-12-18 Federal OR

Chapter: 50.403

Case Name: B.M.I. Interior Yacht Refinishing, Inc. v. M/Y Claire, Case No. 13-62676-CIV-Williams/SIMONTON, 2015 U.S. Dist. LEXIS 91903 (S.D. Fla. July 15, 2015)
(analyzing waiver issues in connection with a non-testifying expert; "Nautical claims that by orally disclosing some or any portion of Guy Clifford's Report, the work product protection has been destroyed as to the entire Report. However, courts have held that due to the sensitive nature of work product materials and the policy behind maintaining their secrecy, generally speaking, when work product protection has been waived, it is limited to the information actually disclosed."; "This limitation is particularly adhered to where the disclosure at issue pertains to work product held or created by a nontestifying expert, as in this case. . . . Even where a court finds that a party waived protections afforded to non testifying experts, the waiver may be limited in scope."; "'The undersigned notes that, as observed in Murray v. Southern Route Mar., S.A., No. C12-1854RSL, 2014 U.S. Dist. LEXIS 58852, 2014 WL 1671581, at *1-3 (W.D. Wash. April 28, 2014), a number of courts have questioned whether the non-testifying expert privilege under Rule 26(b)(4)(B), can ever be waived. . . (collecting cases addressing waiver in context of non-testifying expert disclosure).'")

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

Chapter: 50.403

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

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

Chapter: 50.403

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "HBO argues that Mitre waived work-product protection by (1) permitting James Boocock to testify to certain matters concerning Mitre's investigation and designating that testimony as its 30(b)(6) testimony and (2) by attaching the products of its investigation to its complaint."; "Boocock's answering HBO's deposition questions did not put Mitre's investigation in issue for the simple reason that providing such testimony was not an attempt by Mitre to use protected information to influence a decision maker. In many cases, the vast majority of deposition testimony taken in discovery is never put before any decision maker; frequently, only a small fraction of the deposition testimony taken in a case is cited in connection with a summary judgment motion or offered at trial. Thus, the mere fact that a party makes a partial disclosure of privileged or protected information in a deposition does not result in a subject-matter waiver because there is no use of the testimony by the party holding the privilege."; "HBO's second argument concerning Boocock's testimony -- that Mitre has made affirmative use of the testimony by designating portions as Mitre's 30(b)(6) testimony does not alter this result. The authorities cited above teach that the critical inquiry is whether protected information has been partially disclosed to a decision maker in an effort to influence a decision. A party's deposition testimony, whether from an individual witness or a 30(b)(6) witness, does not constitute such a use. Although HBO argues that Mitre is trying to utilize the work-product doctrine as both a sword and a shield, it has not cited any instance in which Mitre affirmatively used Boocock's testimony and has not, therefore, established Mitre's use of the work-product doctrine as a sword."; "'I am aware that subsequent to Boocock's deposition, the parties have submitted voluminous materials in connection with their motions for summary judgment. However, HBO does not cite any instances in which Mitre has made any affirmative use of Boocock's testimony in connection with these motions.'")

Case Date Jurisidction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 50.403

Case Name: Murray v. Southern Route Maritime, S.A., No. C12-1854RSL, 2014 U.S. Dist. LEXIS 58852 (W.D. Wash. April 28, 2014)
(finding that disclosure of a non-testifying expert's report to an adversary (the employer in a worker's compensation dispute) caused a waiver, but not a subject matter waiver; "Although plaintiffs' disclosure of the CETRI report waived the privilege as to that document, they have preserved the confidentiality of the underlying examination records and any unreported facts or opinions held by the examining experts. Plaintiffs still have an interest in benefitting from some part of their litigation preparation, and this interest is at the core of the work product doctrine and the non-testifying expert privilege. While a party cannot shield the material which it has already disclosed or on which its witnesses rely, where the disclosure is limited, the waiver applies only to the matters disclosed or relied upon.")

Case Date Jurisidction State Cite Checked
2014-04-28 Federal WA

Chapter: 50.403

Case Name: Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2013 Del. Ch. LEXIS 23, at *41-42 (Del. Ch. Sept. 18, 2013)
(analyzing the scope of an implied waiver caused by defendant trust company's assertion of an advice of counsel defense in a lawsuit brought by beneficiaries; "I previously held that Wilmington Trust's advice-of-counsel waiver did not extend to attorney work product, unless the Beneficiaries can establish a substantial need for the materials and can show that they cannot obtain substantially equivalent material by other means. To the extent these limited communications directly addressing litigation strategy or potential liability do not qualify as work-product, they may be withheld because they fall outside the scope of the waiver.")

Case Date Jurisidction State Cite Checked
2013-09-18 State DE B 4/14

Chapter: 50.403

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

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

Chapter: 50.403

Case Name: City of Lakeland Emps. Pension Plan v. Baxter Int'l Inc., No. 10 C 6016, 2013 U.S. Dist. LEXIS 69433, at *6, *7-8, *8-9, *10 (N.D. Ill. May 16, 2013)
(analyzing a subject matter waiver in a work product context; "Appleton Papers [Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018 (7th Cir. 2012)] exposes the overbreadth of Baxter's claim that the work product doctrine 'does not protect the underlying facts of a given case from discovery.' Facts are the subject of discovery. But certain evidence of those facts is protected by the work product doctrine, namely 'documents and tangible things that are prepared in anticipation of litigation.'"; "[T]he test for subject matter waiver in the context of an assertion of work product protection is more demanding. The question of waiver of the work product doctrine turns not on whether there has been a prior disclosure of some portion of the information contained in the work product, but 'whether the specific assertions of privilege are reasonably consistent with the purpose for which the privilege was created.'" (citation omitted); "In the context of this case, that means that the plaintiff's use in the complaint of some of the factual information it obtained from the witnesses waives its work product claim as to materials that set forth the information disclosed. It does not, however, mean that the plaintiff has waived work product protection for all factual information the witnesses may have supplied."; "The question of the scope of a work product waiver turns on the scope of the disclosure; as set forth in Rule 502(a)(3), the waiver should extend only to information that 'ought in fairness . . . be considered together' with the information disclosed.")

Case Date Jurisidction State Cite Checked
2013-05-16 Federal IL B 3/14

Chapter: 50.404

Case Name: City of Glendale v. Nat'l Union Fire Ins. Co., No. CV-12-380-PHX-BSB, 2013 U.S. Dist. LEXIS 60711, at *53 (D. Ariz. Apr. 29, 2013)
(accessing privilege issues in a first party insurance case; holding that defendant insurance company triggered a subject matter waiver by relying on advice of counsel; further holding that the subject matter waiver extended beyond what the insurance company argued, but did not include documents that the lawyer had not provided to the insurance company; further holding that the subject matter waiver extended to the lawyer's advice to the insurance company on the same clauses but in different cases; "Here, the mental impressions of Defendants' outside counsel that were not communicated to Defendants are not relevant to the City's bad faith claim or Defendants' advice-of-counsel defense. Therefore, the City has not established a compelling need for the mental impressions and legal opinions of Defendants' outside counsel as set forth in internal law firm documents that were not communicated to Defendants and did not inform the coverage decision at issue in this case.")

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

Chapter: 50.404

Case Name: City of Glendale v. Nat'l Union Fire Ins. Co., No. CV-12-380-PHX-BSB, 2013 U.S. Dist. LEXIS 60711, at *59 (D. Ariz. Apr. 29, 2013)
(accessing privilege issues in a first party insurance case; holding that defendant insurance company triggered a subject matter waiver by relying on advice of counsel; further holding that the subject matter waiver extended beyond what the insurance company argued, but did not include documents that the lawyer had not provided to the insurance company; further holding that the subject matter waiver extended to the lawyer's advice to the insurance company on the same clauses but in different cases; "[T]he 'same subject matter' for waiver of the attorney-client privilege or the work product doctrine is the coverage advice provided to Defendants. Thus, the Court finds that uncommunicated analysis in outside counsel's files is not the same subject matter for purposes of waiver under Rule 502. Therefore, Defendants' disclosure of Henrichsen's October 24, 2011 opinion letter, and Campbell's August 30, 2011 e-mail summarizing LaBelle's advice, does not result in a waiver of work product protection for all documents in the law firms files related to the coverage analysis.")

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

Chapter: 50.404

Case Name: JJK Mineral Co., LLC v. Swiger, 292 F.R.D. 323, 327-28, 338 (N.D. W. Va. 2013)
(addressing the horizontal and temporal scope of an advice of counsel waiver; "In order for JJK to oppose the defense of reliance on advice of counsel asserted by Swiger, JJK must be able to discover the information that was conveyed by Swiger to counsel and vice-versa; discover what facts were provided by Swiger to the Daniels Law Firm; discover what facts the Daniels Law Firm may have obtained from any other sources other than Swiger; discover the legal research conducted by and considered by the Daniels Law firm; discover the opinions that the Daniels Law Firm gave Swiger and discover whether Swiger selectively ignored any of the facts and opinions given him by the Daniels Law Firm in reaching a decision to authorize claims being made against JJK in the state court action."; "Based on the foregoing analysis, the waiver created by assertion of the advice of counsel defense includes work product of the Daniels Law Firm, whether opinion or fact, whether the same was communicated to Swiger or was only considered in the process of forming any opinion that Swiger had a right to sue JJK in state court. JJK has no other source from which to get this information and the information is relevant to the defense asserted by Swiger.")

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

Chapter: 50.502

Case Name: Cave Consulting Group, Inc. v. OptumInsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 179966 (N.D. Cal. Dec. 29, 2016)
(holding that a merged company faced the consequences of its predecessor's waiver of privilege; "Where Symmetry presented its counsel's investigation and legal conclusion as a sword to persuade the USPTO to rule in its favor in the reexamination, it cannot also rely on the work product doctrine as a shield to bar discovery of documents prepared or gathered during that investigation and that serve as a basis for that legal conclusion, nor other material related to the same subject matter. . . . Such waiver is limited to the same scope as the attorney-client privilege waiver discussed above, including the cutoff date of April 28, 2014. Moreover, work product protection is waived only as to 'factual' or 'non-opinion' work product'; there is no waiver as to counsel's 'mental impressions, conclusions, opinions, or legal theories.'")

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

Chapter: 50.502

Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; finding that plaintiffs could not overcome the work product protection; finding that a work product doctrine was not lost by the internal circulation of the report; finding that another court's compelled disclosure of the report did not trigger a waiver; finding that the company's earlier reference to the report did not cause a waiver; "Plaintiffs assert that Bard has selectively quoted the Report in several documents, including the December 17, 2004 . . . And the January 4, 2005 . . . . Both the HHE and the RAP do repeat the Report's findings that the Recovery Filter was experiencing significantly higher reporting rates of adverse events than comparable filters. . . . The documents also convey some of the Report's limitations, such as the lack of reliable data and the need to conduct follow-up research. . . . But Plaintiffs do not show how this use of the Report constitutes a sword. The sword-shield rulings stand for basic fairness -- a party should not be allowed to use work product affirmatively to gain some advantage in litigation, and at the same time withhold the work product from scrutiny by asserting the work product protection. The use of data and conclusions from the Report in internal Bard documents, such as the RAPs and the HHEs, does not amount to such affirmative use, and fairness therefore does not demand disclosure of the full document.")

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

Chapter: 50.502

Case Name: United States of America v. Novak, No. 13 CR 312, 2014 U.S. Dist. LEXIS 136705, at *7 (N.D. Ill. Sept. 28, 2014)
("[I]t is not clear that the privilege [work product doctrine] applies at all to what amounts to prior drafts of testimony that a litigant is presenting to a court, which is what is at issue here. But even if so, the Supreme Court has held that the work product privilege is waived with respect to a witness when a litigant elects to present that person's testimony. . . . That is the case here. And even if it was not, given the nature of the inquiry at the upcoming hearing, Novak has made a sufficient showing of need with regard to relevant portions of the prior versions of the agent's affidavit as well as communications about the affidavit's contents.")

Case Date Jurisidction State Cite Checked
2014-09-28 Federal IL

Chapter: 50.502

Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

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

key case


Chapter: 50.502

Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

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

key case


Chapter: 50.502

Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

Case Date Jurisidction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 50.502

Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

Case Date Jurisidction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 50.502

Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559 (S.D.N.Y. Nov. 5, 2013)
February 12, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part I"

All but a handful of courts find that companies disclosing privileged communications or protected work product to the government waive both of those protections. Courts properly analyzing waiver rules also recognize that disclosing historical facts does not cause a waiver – because historical facts are not privileged.

In two related cases, Judge Francis of the Southern District of New York dealt with the intersection of these basic principles. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559 (S.D.N.Y. Nov. 5, 2013), Weatherford retained Latham & Watkins and Davis Polk to conduct two separate corporate investigations into material weaknesses in the company's internal controls over financial reporting. The court acknowledged that both investigations deserved work product protection. However, the court also found that the company waived its privilege and fact (but not opinion) work product protection by disclosing information about the investigations to the SEC. In defining the scope of the resulting waiver, the court (1) rejected plaintiffs' argument that the waiver extended to "all materials relevant" to the investigations; (2) found that the waiver covered any material actually given to the SEC, and any oral representations company lawyers made to the SEC; and (3) held that the waiver also extended to any "underlying factual material explicitly referenced" in such material or representations. Id. At *28, *27.

Perhaps not surprisingly, the parties soon disagreed about the company's interpretation of the waiver's scope – which resulted in another opinion one month later. The next two Privilege Points describe that decision.

Case Date Jurisidction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 50.502

Case Name: Carpenter Co. v. BASF SE (In re Urethane Antitrust Litig.), MDL No. 1616, Case No. 04-MD-1616-JWL, 2013 U.S. Dist. LEXIS 128353, at *39-40 (D. Kan. Sept. 5, 2013)
(holding that Dow's disclosure of some information about Dow's investigation into possible misconduct caused a subject matter waiver; "The undersigned finds that fairness demands that DAPs [direct-action plaintiffs] be allowed to examine the whole picture showing what allegations Barbour reported to Dow in 2004. At Dow's [defendant] explicit request, the court ruled that the parties could take discovery into whether Barbour [Dow's former employee] reported antitrust concerns to Dow in 2004, as opposed to for the first time during her deposition in 2010. . . . The undersigned has reviewed the Ella [Barbour/s former lawyer] memorandum in camera and finds that it contains information specifically addressing this topic which is favorable to DAPs' theory of events -- information that must be revealed to avoid a misleading presentation of the evidence to the disadvantage of DAPs. Thus, the undersigned finds that the Ella memorandum must be produced to DAPs under Rule 502, despite any privilege protection (including work-product protection or a joint-defense/common-interest privilege) which might otherwise attach to it." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-09-05 Federal KS B 4/14

Chapter: 50.502

Case Name: Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 100012, at *39 40 (S.D.N.Y. July 10, 2013)
(rejecting the possibility of a selective waiver upon disclosing work product to the government; "As a general matter, when a party selectively discloses attorney-client communications to an adverse government entity, the privilege is waived not only as to the materials provided, but also as to the underlying source materials.")

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

Chapter: 50.502

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

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

Chapter: 50.502

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

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

Chapter: 50.502

Case Name: Baird v. Dolgencorp, L.L.C., No. 4:11 CV 1589 DDN, 2013 U.S. Dist. LEXIS 17269, at *3 n.1 (E.D. Mo. Feb. 5, 2013)
(finding that a plaintiff could depose the defendant's investigator, who had videotaped plaintiff as part of the investigation; "'The undersigned notes that if the footage already produced by defendants is presented to the jury during trial, fairness will require defendants to produce any additional footage.'")

Case Date Jurisidction State Cite Checked
2013-02-05 Federal MO B 2/14

Chapter: 50.502

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

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

Chapter: 50.502

Case Name: Manheim Auto. Fin. Servs. v. Oltmann (In re Oltmann), Ch. 7 Case No. 07-19488 HRT, Adv. No. 07-1753 HRT, 2013 Bankr. LEXIS 412, at *11-12 (D. Colo. Feb. 1, 2013)
(inexplicably finding that a litigant waived work product protection for an investigator's work by using information uncovered by the investigator in answering other discovery; "Where a party has made a voluntary disclosure of attorney work product, this case illustrates the importance of requiring a showing that the disclosure was made to achieve some tactical or strategic advantage in the litigation in order to find a subject matter waiver of the privilege. Here, the disclosure was made in the interest of satisfying the Plaintiff's discovery obligations and supplying information to the Defendant. Plaintiff did not use its disclosure of the information as a sword to gain an advantage in the litigation. It disclosed information to the Defendant from which he may locate the same potential witnesses and interview or depose them as part of his own preparation for trial. Here, the work product of Plaintiff's attorney was used in a manner fully consistent with the adversarial process. Destruction of the privilege based on such a disclosure would surely not serve the interests that the work product privilege is designed to advance or the interest of complete information exchange during pre-trial discovery; nor is it consistent with U.S. v. Nobles, 422 U.S. 225 (1975).")

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

Chapter: 50.502

Case Name: Mass. Mut. Life Ins. Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 293 F.R.D. 244, 246-47, 247, 249, 250, 253 (D. Mass. 2013)
(analyzing plaintiff's reliance on a outside consultant's forensic review in its complaint, and its later disclaimer of any intent to use the review at trial; applying the Rule 502 subject matter waiver standard, and finding that the plaintiff had not triggered an at issue doctrine or other waiver requiring disclosure of additional documents relating to the review; "The 'forensic review,' was conducted by an outside consultant at the direction of plaintiff's litigation counsel. . . . There is no dispute but that the review was a substantial basis upon which the allegations of the complaint were made and was cited in over thirty separate paragraphs of its complaint."; "Defendants sought discovery concerning the forensic review; plaintiff resisted, claiming that the forensic review is protected by the attorney-client privilege and/or work product doctrine. . . . In defendants' view, any privilege was waived when the plaintiff put the materials at issue by relying on them in its complaint."; "[T]he plaintiff opposed the defendants' motion, but as to the third ground, stated unequivocally that it does not intend to rely on the forensic review to prove its claims at trial. . . . The plaintiff contends that the documents concerning the pre-filing forensic review are privileged under the attorney-client privilege and/or are protected by the work-product documents [sic] and that the use of the forensic review in the complaint does not operate as a waiver of the privilege or protection because of its disclaimer that it will not use the review in any way to prove its claims at trial. Rather, the forensic review was simply 'pre-filing data and analysis used to determine whether allegations have a good-faith basis.'"; "The Court rules that, under Massachusetts law, the forensic review materials are privileged as attorney-client matter."; "In the instant case, the plaintiff's claims are almost entirely premised on the results of its review. . . . Thus, the defendants' answers and defenses likewise respond to plaintiff's reliance on the privileged material. This would make the forensic review relevant but, on the facts of this case, is the forensic review 'enmeshed'. . . such that the privilege should fall? . . . Put another way, is forensic review 'enmeshed' if it will in no way be used as evidence to prove MassMutual's claims?"; "[T]he Court looks to cases in which pre-litigation evaluations, audits or reviews are referenced in support of the allegations of the initial complaint and whether there is a disclaimer that the materials will not be used as evidence at trial to prove any of plaintiff's claims."; "[T]he issue of waiver, in the end, is whether what was disclosed and what is sought by the motion to compel 'ought in fairness be considered together.' Rule 502(a)(3), Fed. R. Evid. Based on the above-cited case law, the Court rules that, in the circumstances of the instant case, 'fairness' does not require that MassMutual disclose any additional documents or information relative to the forensic review. The major factor which leads to this ruling is that MassMutual does not need the forensic review to prove its claims and has explicitly eschewed any use of the forensic review as evidence at trial. There has been no 'at issue' waiver, . . . and since the forensic review will be not be used as evidence at trial, there is no danger that what has not been disclosed is 'enmeshed' with what has been disclosed so as to create any unfairness or prejudice to the defendants.")

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

Chapter: 50.502

Case Name: Melendrez v. Superior Court, 156 Cal. Rptr. 3d 335, 341, 342 (Cal. Ct. App. 2013)
(holding that if a lawyer verifies a corporation's discovery response, it triggers a limited waiver; "[A]n attorney may verify a response as an officer or agent of a corporate party. (§§ 2030.250, subd. (b), 2033.240, subd. (b).) Doing so, however, will constitute a limited waiver of the attorney-client and work product privileges, 'during any subsequent discovery from that attorney concerning the identity of the sources of the information contained in the response.' (§§ 2030.250, subd. (b), 2033.240, subd. (b).)"; "The reason for this waiver should be obvious. As a general matter, when an individual verifies discovery responses, further discovery can be directed to that individual to determine the sources for the initial responses. Indeed, SECO [Special Electric Co., bankrupt subject of the underlying suit] conceded this is one of the purposes of a verification of a discovery response, and Melendrez pursued this course by following the RFAs with form interrogatory No. 17.1. But if an attorney verifies the initial discovery response without a corresponding limited waiver of the privileges, the attorney can frustrate followup discovery by simply asserting those privileges."; "The applicable statutes narrowly circumscribe the waiver; the privileges are only waived during any subsequent discovery from the attorney concerning the identity of the sources of the information contained in the response. The statutes do not provide for or permit lengthy further discovery from a verifying attorney. Indeed, there is no indication that a deposition of the verifying attorney would ever be necessary in any particular case.")

Case Date Jurisidction State Cite Checked
2013-01-01 State CA B 7/13

Chapter: 50.502

Case Name: JTR Enters., LLC v. An Unknown Quantity of Columbian Emeralds, 297 F.R.D. 522, 531 (S.D. Fla. 2013)
("Federal Rule of Evidence 106 states that '[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part -- or any other writing or recorded statement -- that in fairness ought to be considered at the same time.'"; "We find that Motivation cannot reasonably expect to preserve confidentiality of its purported work-product -- the sworn statement of Lisa Martorano -- after voluntarily disclosing certain substantive components of it.")

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

Chapter: 50.502

Case Name: Columbia Data Prods., Inc. v. Autonomy Corp. Ltd., Civ. A. No. 11 12077 NMG, 2012 U.S. Dist. LEXIS 175920, at *51-52 (D. Mass. Dec. 12, 2012)
(including that an audit prepared by PWC for plaintiff CDP did not deserve privilege or work product protection, although CDP's law firm Greenberg Traurig retained PWC; "The same concerns for fairness that underlie the waiver of attorney-client privileged communications are equally applicable to waiver of work product information. . . . Accordingly, a subject matter waiver of work product material is appropriate where a party is attempting to use otherwise protected information as 'both a sword and a shield' in order to gain an unfair tactical advantage over the opposing party." (citation omitted))

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

Chapter: 50.503

Case Name: United States v. Berkeley Heartlab, Inc., Civ. A. No. 9:14-cv-00230-RMB Consolidated with 9:11-cv-1593-RMG and 9:15-cv-2458-RMG, 2017 U.S. Dist. LEXIS 51691 (D.S.C. April 5, 2017)
(holding that defendant's advice of counsel defense resulted in a broad subject matter waiver, including even uncommunicated privileged documents; also finding that the subject matter waiver included work product protected documents; "Some courts have found that, when a party asserts an advice of counsel defense, the work product waiver only applies to work product that has been communicated to the party asserting the affirmative defense."; "Other courts have found that, when a party asserts an advice of counsel defense, the waiver of the work product protection extends to 'uncommunicated work product.'. . . In this case, the Court finds this second group of decisions more compelling because to oppose the BlueWave Defendants' advice of counsel defense, the Government must be able to discover the following about the relevant contracts and kick-back schemes: 'discover the information that was conveyed by [Defendants] to counsel and vice-versa; discover what facts were provided by [Defendants] to [their counsel]; discover what facts [Defendants' counsel] may have obtained from any other sources other than Defendants; discover the legal research conducted by and considered by [Defendants' counsel]; discover the opinions that [Defendants' counsel] gave [Defendants] and discover whether [Defendants] selectively ignored any of the facts and opinions given [them] by [their counsel] in reaching a decision. . .'"; "For this reason, the Court considers the scope of the work product waiver in this case to extend to uncommunicated work product.")

Case Date Jurisidction State Cite Checked
2017-04-05 Federal SC
Comment:

key case


Chapter: 50.503

Case Name: Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2013 Del. Ch. LEXIS 23, at *41-42 (Del. Ch. Sept. 18, 2013)
(analyzing the scope of an implied waiver caused by defendant trust company's assertion of an advice of counsel defense in a lawsuit brought by beneficiaries; "I previously held that Wilmington Trust's advice-of-counsel waiver did not extend to attorney work product, unless the Beneficiaries can establish a substantial need for the materials and can show that they cannot obtain substantially equivalent material by other means. To the extent these limited communications directly addressing litigation strategy or potential liability do not qualify as work-product, they may be withheld because they fall outside the scope of the waiver.")

Case Date Jurisidction State Cite Checked
2013-09-18 State DE B 4/14

Chapter: 50.503

Case Name: JJK Mineral Co., LLC v. Swiger, 292 F.R.D. 323, 329 (N.D. W. Va. 2013)
(addressing the horizontal and temporal scope of an advice of counsel waiver; "Review of a sampling of cases from across the country reveals that, although there is no uniform bright line rule, the better position is that assertion of the advice of counsel defense waives the attorney client privilege with respect to communications between counsel and client with respect to the subject matter of the advice being sought but does not necessarily fully waive the opinion work product immunity.")

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

Chapter: 50.503

Case Name: Mass. Mut. Life Ins. Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 293 F.R.D. 244, 246-47, 247, 249, 250, 253 (D. Mass. 2013)
(analyzing plaintiff's reliance on a outside consultant's forensic review in its complaint, and its later disclaimer of any intent to use the review at trial; applying the Rule 502 subject matter waiver standard, and finding that the plaintiff had not triggered an at issue doctrine or other waiver requiring disclosure of additional documents relating to the review; "The 'forensic review,' was conducted by an outside consultant at the direction of plaintiff's litigation counsel. . . . There is no dispute but that the review was a substantial basis upon which the allegations of the complaint were made and was cited in over thirty separate paragraphs of its complaint."; "Defendants sought discovery concerning the forensic review; plaintiff resisted, claiming that the forensic review is protected by the attorney-client privilege and/or work product doctrine. . . . In defendants' view, any privilege was waived when the plaintiff put the materials at issue by relying on them in its complaint."; "[T]he plaintiff opposed the defendants' motion, but as to the third ground, stated unequivocally that it does not intend to rely on the forensic review to prove its claims at trial. . . . The plaintiff contends that the documents concerning the pre-filing forensic review are privileged under the attorney-client privilege and/or are protected by the work-product documents [sic] and that the use of the forensic review in the complaint does not operate as a waiver of the privilege or protection because of its disclaimer that it will not use the review in any way to prove its claims at trial. Rather, the forensic review was simply 'pre-filing data and analysis used to determine whether allegations have a good-faith basis.'"; "The Court rules that, under Massachusetts law, the forensic review materials are privileged as attorney-client matter."; "In the instant case, the plaintiff's claims are almost entirely premised on the results of its review. . . . Thus, the defendants' answers and defenses likewise respond to plaintiff's reliance on the privileged material. This would make the forensic review relevant but, on the facts of this case, is the forensic review 'enmeshed'. . . such that the privilege should fall? . . . Put another way, is forensic review 'enmeshed' if it will in no way be used as evidence to prove MassMutual's claims?"; "[T]he Court looks to cases in which pre-litigation evaluations, audits or reviews are referenced in support of the allegations of the initial complaint and whether there is a disclaimer that the materials will not be used as evidence at trial to prove any of plaintiff's claims."; "[T]he issue of waiver, in the end, is whether what was disclosed and what is sought by the motion to compel 'ought in fairness be considered together.' Rule 502(a)(3), Fed. R. Evid. Based on the above-cited case law, the Court rules that, in the circumstances of the instant case, 'fairness' does not require that MassMutual disclose any additional documents or information relative to the forensic review. The major factor which leads to this ruling is that MassMutual does not need the forensic review to prove its claims and has explicitly eschewed any use of the forensic review as evidence at trial. There has been no 'at issue' waiver, . . . and since the forensic review will be not be used as evidence at trial, there is no danger that what has not been disclosed is 'enmeshed' with what has been disclosed so as to create any unfairness or prejudice to the defendants.")

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

Chapter: 50.503

Case Name: Luthman v. GEICO, 40 Va. Cir. 404, 405-06 (Va. Cir. Ct. 1996)
(adopting the reasoning of Hartman v. Banks, 164 F.R.D. 167 (E.D. Pa. 1995) and Reavis v. Metropolitan Property & Liability Ins. Co., 117 F.R.D. 160 (S.D. Cal. 1987), in holding that an insurance lawyer's entire files--including opinion work product--were discoverable despite the work product protection in a case involving a bad faith denial of insurance coverage claim; also noting that the insurance company impliedly waived the attorney-client privilege by asserting advice of counsel)

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

Chapter: 50.901

Case Name: Murray v. Southern Route Maritime, S.A., No. C12-1854RSL, 2014 U.S. Dist. LEXIS 58852 (W.D. Wash. April 28, 2014)
(finding that disclosure of a non-testifying expert's report to an adversary (the employer in a worker's compensation dispute) caused a waiver, but not a subject matter waiver; "Although plaintiffs' disclosure of the CETRI report waived the privilege as to that document, they have preserved the confidentiality of the underlying examination records and any unreported facts or opinions held by the examining experts. Plaintiffs still have an interest in benefitting from some part of their litigation preparation, and this interest is at the core of the work product doctrine and the non-testifying expert privilege. While a party cannot shield the material which it has already disclosed or on which its witnesses rely, where the disclosure is limited, the waiver applies only to the matters disclosed or relied upon.")

Case Date Jurisidction State Cite Checked
2014-04-28 Federal WA

Chapter: 50.901

Case Name: Teal Bay Alliances, Inc. v. Southbound One, Inc., Case No. MJG-13-2180, 2014 U.S. Dist. LEXIS 55378 (D. Md. April 21, 2014)
("The waiver inquiry with respect to the work-product doctrine centers around fairness to the parties in the context of the advice-of-counsel defense in a trademark infringement case under the Lanham Act, 15 U.S.C. § 1051, et seq. Such an inquiry seeks to ensure that the preparations of the attorney asserting the advice-of-counsel defense are not unnecessarily invaded, and that the party against whom the defense is asserted is not prevented from discovering relevant information.")

Case Date Jurisidction State Cite Checked
2014-04-21 Federal MD

Chapter: 50.901

Case Name: Teal Bay Alliances, Inc. v. Southbound One, Inc., Case No. MJG-13-2180, 2014 U.S. Dist. LEXIS 55378 (D. Md. April 21, 2014)
("I find that the scope of the waiver of Southbound's advice-of-counsel defense extends to communications that relate to the subject matter of Mr. Pelton's advice, and not just to the advice itself. Specifically, I find that the subject matter of Mr. Pelton's advice is the Shorebilly mark in general, including its use by Southbound, Teal Bay and third parties. Any communications between Mr. Pelton and Southbound related to this subject matter are within the scope of the advice-of-counsel waiver. I will discuss my analysis with respect to each of the exhibits in turn.")

Case Date Jurisidction State Cite Checked
2014-04-21 Federal MD

Chapter: 50.1103

Case Name: Microsoft Corp. v. Acacia Research Corp., 13 cv 8275 (PAC), 2014 U.S. Dist. LEXIS 161457 (S.D.N.Y. Nov. 17, 2014)
(analyzing the common interest doctrine in connection with a patent purchaser's disclosure of its lawyer's advice to the potential seller; "Acacia [potential buyer] points to (i) the privilege clause contained in each patent sale contract, (ii) the timing of the disclosure, and (iii) the royalty entitlements. The privilege clause, Acacia argues, provides that the disclosure of privileged information between Acacia and the seller 'in furtherance of their common legal interest' does not diminish or waive attorney-client privilege. . . . But mere recital is hardly conclusive or compelling on whether such an interest exists.")

Case Date Jurisidction State Cite Checked
2014-11-17 Federal NY