Among many other differences between the attorney-client privilege and the work product doctrine, disclosing protected communications to a friendly third party sometimes waives the former protection, but not the latter.
In Cellco Partnership v. Nextel Communications, Inc., No. M8-85 (RO), 2004 U.S. Dist. LEXIS 12717 (S.D.N.Y. July 7, 2004), Nextel employees sent e-mails to Nextel’s advertising agency that contained legal advice the employees had received from Nextel’s in-house lawyer. The court found that this disclosure waived the attorney-client privilege. In contrast, another e-mail a Nextel employee sent to the advertising agency “contained legal advice that was given in anticipation of [previous] litigation.” Id. at *4. The court found that Nextel and its advertising agency shared a “business interest” (if not the same “litigation objectives”), and also noted that the advertising agency was “contractually obligated not to disclose” information it received from Nextel. Id. at *5. Given these facts, the court concluded that Nextel had not waived the work product protection by disclosing this e‑mail to its advertising agency.
Although companies should train their employees not to share any protected communications even with friendly third parties (absent careful consideration of the risks), differences in the waiver doctrine between the privilege and the work product protections will sometimes save a company from disaster.