The Waiver Implications of Sharing Protected Documents With the Government – Case Closed?

May 26, 2004

Over the past several years, many courts have wrestled with the waiver implications of sharing privileged documents and information with the government (normally in an effort to avoid some punitive action by the government, or to assist the government in pursing an action against a wrongdoer such as a corporate officer). Given what seems to be society’s interest in encouraging such cooperation, courts debated whether such disclosure caused a waiver.

A recent string of cases in federal and state courts seems to have ended the debate. All of these cases have found that companies waived both the attorney-client privilege and the work product doctrine protection by sharing protected material with the government, despite broad non-waiver and confidentiality agreements. In some of these cases, the government joined the companies in unsuccessfully arguing against a waiver. Tyco Int’l, Inc. Multidistrict Litig., MDL Dkt. No. 02-1335-B, 2004 U.S. Dist. LEXIS 4541 (D.N.H. Mar. 19, 2004); Spanierman Gallery v. Merritt, No. 00 Civ. 5712 (LTS)(THK), 2003 U.S. Dist. LEXIS 22141 (S.D.N.Y. Dec. 5, 2003); McKesson HBOC, Inc. v. Superior Court, 9 Cal. Rptr. 3d 812 (Cal. Ct. App. 2004); McKesson Corp. v. Green, Nos. A03A2428 & A03A2429, 2004 Ga. App. LEXIS 326 (Ga. Ct. App. Mar. 8, 2004);

Companies may still decide to share protected information with the government (for reasons that outweigh the protections), but any company doing so should realize that they are almost certainly waiving all protections for the documents shared – the next wave of cases probably will focus on the scope of the subject matter waiver that will almost surely follow.