The last two Privilege Points framed an ongoing debate among courts about the waiver effect of companies sharing privileged materials with the government. Some courts find a waiver, while others do not.
Another case has discussed a third approach, relying on the very different waiver rules governing work product (as opposed to privileged communications). Although sharing privileged communications to anyone outside the attorney-client relationship generally causes a waiver, a party can sometimes share work product with friendly third parties without waiving that protection. In McKesson HBOC, Inc. v. Adler, 562 S.E.2d 809, 813 (2002), the court acknowledged that a company providing documents to the SEC might not have waived the work product protection for those documents, because the company was cooperating in the SEC’s investigation of company officials.
To be sure, few companies could ever successfully argue that the government is their ally, but company lawyers should explore this possible argument if the company would benefit from sharing work product with the government while continuing to shield it from private plaintiffs’ discovery.