Courts Continue to Recognize Different Waiver Rules for Work Product Materials and Attorney-Client Privileged Communications

June 17, 2009

With only a few exceptions, disclosing attorney-client privileged communications to any third party destroys that protection. Because the separate work product protection does not rest on confidentiality, disclosing work product to a third party does not automatically destroy that protection.

In Plew v. Limited Brands Inc., No. 08 Civ. 3741 (LTS) (MHD), 2009 U.S. Dist. LEXIS 39715, at *2 (S.D.N.Y. Apr. 23, 2009), the court held that defendant Victoria’s Secret did not waive the work product protection covering documents in a patent infringement case by disclosing them to a non-party “which assertedly supplied the bra that is said to have infringed plaintiff’s patent.” The court noted that the companies’ interests were “aligned,” and “in any event their relationship is governed by a series of contractual terms ensuring confidentiality” (which would be irrelevant in analyzing waiver in the privilege context, but which plays an important role in the work product context). Id. at *9. Four days later, the Northern District of California similarly held that Skadden Arps’ disclosure of work product to its corporate client’s outside auditor PwC did not waive the work product protection. SEC v. Schroeder, No. C07-03798 JW (HRL), 2009 U.S. Dist. LEXIS 39378 (N.D. Cal. Apr. 27, 2009) (not for citation).

Lawyers should always examine the possible applicability of both the attorney-client privilege (which provides absolute but fragile protection) and the work product doctrine (which generally provides qualified but more robust protection).