Sharing Documents With the Government is Found to Waive the Attorney-Client Privilege

August 23, 2000

Although it might seem logical and even socially beneficial to encourage parties to share privileged documents with the government (in cooperating with investigations or forestalling some administrative action), most courts find that such sharing waives the attorney-client privilege protection.

In the recent case of McCoo v. Denny’s Inc., 192 F.R.D. 678 (D. Kan. 2000), Denny’s supplied privileged correspondence to the Kansas Human Rights Commission in connection with that agency’s investigation of the restaurant chain. The court found that this action waived the attorney-client privilege that would otherwise have protected the correspondence. Id. at 680-81. This meant that Denny’s could not protect the correspondence in a later lawsuit filed by private plaintiffs.

It might seem counter-instinctual to essentially “punish” a company for cooperating with the government, but nearly every court takes exactly that approach. Litigants and their lawyers should recognize this risk before deciding whether to share protected documents or information with a government agency.