Does Sharing Work Product With the Government Necessarily Waive the Work Product Protection?

October 23, 2002

An important distinction between the attorney-client privilege and the work product doctrine is best illustrated by analyzing the effect on each protection of sharing protected communications or material with the government. In nearly every case, a client (or lawyer) sharing privileged communications with the government waives the attorney-client privilege protection, which rests on the importance of preserving the intimate confidentiality of attorney-client communications. Because the work product protection rests on different doctrinal grounds, clients (or lawyers) may share work product with third parties outside the attorney-client relationship without waiving that protection—unless the sharing makes it more likely that the adversary will obtain the material.

So does sharing work product with the government necessarily waive that protection? If the government is an adversary (which it often is), the answer is almost always yes. However, if the government is investigating corporate executives rather than the corporation itself, the company might be able to share work product with the government without waiving that protection (because the government is not the company’s adversary). A Georgia court recently adopted this analysis. McKesson HBOC, Inc. v. Adler, 562 S.E.2d 809, 813 (Ga. Ct. App. 2002).

Lawyers unfamiliar with the subtle distinctions between the attorney-client privilege and the work product doctrine could either unwittingly waive their client’s protections, or miss the opportunity to assist their clients through their mistaken belief that some action will waive the protection.