What is the Long-Term Effect of Waiving a Protection? – Part II

July 8, 2009

As explained in several recent “Privilege Points,” disclosing work product to a third party does not necessarily waive that protection. Instead, a waiver generally occurs only upon disclosure to an adversary, or to a third party likely to share the work product with an adversary.

Despite this more robust nature of the work product doctrine, disclosure which triggers a waiver generally waives the work product protection for all purposes. In Adkins Energy, LLC v. Farmland Mutual Insurance Co., Case No. 04 C 50482, 2009 U.S. Dist. LEXIS 38099, at *6 (N.D. Ill. May 6, 2009), the court acknowledged the general rule that “[w]hereas disclosure of a privileged document to a third party waives attorney-client privilege, the same is not necessarily true regarding the work product doctrine.” However, the court then dealt with the waiver effect of a company disclosing work product during an arbitration with several other companies about what caused a fire. The court held that the company had “made available the information in the exhibit to adversaries,” which, “in turn, substantially increased the opportunity for Farmland [the company’s insurance carrier, with which the company had a dispute] to gain access to the information.” Id. at *7. Thus, disclosure of the work product in the earlier arbitration allowed the insurance carrier to seek the work product in its dispute with the company (its insured).

Although disclosing work product to a third party does not necessarily waive the work product protection, disclosing work product to an adversary generally triggers the same far-reaching waiver effect as disclosing privileged communications.