A strange reversal sometimes occurs when a litigant produces arguably protected documents in discovery. If the litigant’s adversary argues that the production triggers a subject matter waiver (thus requiring the litigant to produce additional documents), the producing litigant sometimes argues that the documents did not deserve any protection. Because producing non-protected documents does not waive any protection, it cannot trigger a subject matter waiver.
In Northrop Grumman Corp. v. United States, 80 Fed. Cl. 651 (Fed. Cl. 2008), Northrop Grumman argued that the United States’ production of work product-protected documents triggered a subject matter waiver. Northrop Grumman pointed to (1) labels on the government’s documents indicating that they were “‘produced in direct or indirect anticipation of litigation pursuant to the direction of the government attorney'” and (2) inclusion of the documents on the government’s initial privilege log. Id. at 653. The court ultimately agreed with the government that the documents did not deserve work product protection. Among other things, the court explained that its responsibility “is to look at the essence of a document itself, and not be driven to conclusions merely by a stamp affixed to the document.” Id. at 655. Thus, the government’s production of non-protected documents did not cause a waiver, or trigger a subject matter waiver.
Despite the embarrassment that such a reversal might cause, litigants’ lawyers must be prepared to disclaim privilege or work product protection in an effort to avoid a damaging subject matter waiver.