Internal corporate or other entity investigations frequently generate discovery motions that focus on privilege and work product creation and waiver issues. Two recent decisions offer some good news for defendants resisting discovery of investigation-related documents.
In Wisk Aero LLC v. Archer Aviation Inc., Case No. 21-cv-02450-WHO (DMR), 2023 U.S. Dist. LEXIS 103780 (N.D. Cal. June 14, 2023), the court understandably held that defendant waived some work product protection by relying on its expert FTI Consulting's forensic investigation of alleged trade secret misappropriation and patent infringement. But the court properly held that defendant's "waiver extends to 'factual' work product concerning the same subject matter as the disclosed work product — FTI's investigation — but does not extend to opinion work product." Id. at *28-29. This generally accepted favorable waiver scope standard protects what in most cases the investigating corporation worries most about disclosing.
This absolute or nearly absolute protection for opinion work product adds to the litany of factors making work product more attractive in some cases than the attorney-client privilege. Next week's Privilege Point will describe a favorable Texas Supreme Court investigation-related decision.