What Does it Take to Waive the Work Product Protection?

January 6, 2010

Unlike the fragile attorney-client privilege (which a client or lawyer generally waives by disclosing to any third party), a party normally waives work product protection only by disclosing the work product to an adversary or another third party who might give that work product to an adversary.

In U.S. EEOC v. ABM Industries Inc., Case No. 1:07-cv-01428-LJO-BAK GSA, 2009 U.S. Dist. LEXIS 97646 (E.D. Cal. Oct. 5, 2009), the court found that the work product doctrine protected blank questionnaires that the EEOC sent to allegedly victimized employees. The court properly noted that analyzing work product waiver focuses on “whether the subject disclosures increased the likelihood that a current or potential opponent in litigation would gain access to the disputed documents.” Id. at *28. The court explained that the EEOC sent the questionnaires to approximately 4,000 current and former company employees “before knowing their victimization or witness status.” Id. at *30. The court concluded that the EEOC’s widespread dissemination of the questionnaire “increased the likelihood of ABM management gaining access to the document, which is precisely what happened” — because a current employee who received a questionnaire gave the cover letter and the questionnaire to a supervisor. Id. The court ultimately held that the EEOC waived its work product protection.

Although parties can more freely disclose work product than privileged communications, they must still analyze the likelihood of their work product falling into enemy hands.