Numerous recent decisions have dealt with the discoverability of investigation reports into possible corporate wrongdoing. When well-known lawyer Dan Webb completed an investigation report into the New York Stock Exchange’s dealings with its former head Richard Grasso, Grasso sought the report in discovery – arguing that NYSE’s disclosure of the Webb Report to the New York State Attorney General’s Office and the SEC waived any privilege.
After reviewing the Webb Report in camera, a New York state court found that the Webb Report did not deserve any privilege ab initio. State v. Grasso, No. 401620/04 (N.Y. Sup. Ct. Jan. 27, 2005), at http://decisions.courts.state.ny.us/fcas/FCAS_docs/
2005JAN/3004016202004C1SCIV.pdf [PDF format]. The court found that the Report “contains no legal analysis or advice” – instead indicating on its face that Webb “will separately provide the NYSE with legal advice and analysis.” Id. at 2 (citation omitted). The court concluded that “the Webb Report merely offers a factual analysis and recommendations or comments for desirable future business practices.” Id. at 2.
Ironically, the court’s ruling might provide more protection than a finding that the NYSE waived the privilege by sharing the Report with the government. Such a waiver ruling would almost surely have resulted in a subject matter waiver – requiring the NYSE to produce additional documents on the same subject matter (perhaps even the entire investigation file). No subject matter waiver results from disclosure of a non-privileged document even if it obviously resulted from privileged communications – or else no litigator could file a brief in court without triggering a subject matter waiver.