Court Distinguishes Between Fact and Opinion Work Product Disclosed to the Government

January 7, 2009

Although work product can be disclosed to third parties without automatically waiving that protection, disclosing work product to an adversary generally causes a waiver. Nearly every court analyzing the disclosure of work product to the government has found that such an action triggers a waiver. However, an occasional decision provides a glimmer of hope to companies seeking to avoid such a harsh result when they cooperate with the government.

In In re Stone Energy Corp., Civ. A. No. 05-2008 (Lead), 2008 U.S. Dist. LEXIS 94756 (W.D. La. Nov. 4, 2008), the court dealt with Stone’s disclosure to the SEC of materials prepared by Davis Polk, which had conducted an internal corporate investigation for Stone’s Audit Committee. The court followed the majority rule in finding that the SEC was an adversary, and that the confidentiality agreement between Stone and the SEC gave the latter “broad discretion to disclose the documents” in furtherance of the SEC’s work, and therefore “gave little expectation of privacy.” Id. at *15-16, *16. After reaching the predictable conclusion that Stone waived its fact work product protection by disclosing Davis Polk’s material to the SEC, the court pointed to what it called the “almost absolute protection” provided to opinion work product. Id. at *17. The court rejected efforts to force disclosure of Davis Polk’s opinion work product shared with the government — which included “memoranda created by Davis Polk based on oral statements of witnesses whom Davis Polk decided to interview,” and “a PowerPoint presentation which represents the culmination of Davis Polk’s review.” Id. at *12.

Because so few courts have found that companies can disclose any work product to the government without causing a waiver, lawyers should be prepared to cite this analysis.