Courts Continue to Wrestle with the Waiver Effects of Sharing Work Product with the Government

May 11, 2005

Nearly every court agrees that sharing privileged communications with the government waives the attorney-client privilege protection (except in very rare circumstances in which common interest doctrine avoids the waiver). Although there has been slightly more debate on the waiver effects of sharing work product with the government (because that protection is hardier than the privilege protection), the trend has clearly been in favor of finding a waiver. Many of the cases dealing with this issue involve an agreement by Skadden Arps to share with the SEC and the U.S. Attorney’s Office the results of an investigation it conducted for McKesson Corporation into possible wrongdoing by a company that McKesson had purchased.

The debate has continued. On March 7, 2005, the Georgia Supreme Court held that McKesson had waived the work product protection covering the Skadden documents by sharing them with the government. McKesson Corp. v. Green, 610 S.E.2d 54 (Ga. 2005). The court primarily relied on a recent Sixth Circuit case, Tennessee Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp. (In re Columbia/HCA Healthcare Corp. Billing Practices Litigation), 293 F.3d 289 (6th Cir. 2002), finding that sharing work product with the government waives that protection. A little over three weeks later, the Northern District of California took exactly the opposite approach. In In re McKesson HBOC, Inc. Securities Litigation, Nos. C-99-20743 RMW & C-00-20030 RMW, 2005 U.S. Dist. LEXIS 7098 (N.D. Cal. Mar. 31, 2005), the district judge reversed a March 2004 finding by the magistrate judge that McKesson had waived the work product protection. The district court explicitly relied on the dissent in the In re Columbia/HCA case.

The recent Northern District of California decision breaks a long string of decisions finding that a party sharing work product with the government waives that protection – time will tell whether it represents an aberration or a new trend.