(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 |
Jurisdiction |
State |
Cite Checked |
| 2010-01-01 |
Federal |
VA |
|