Courts Continue to Analyze the Waiver Impact of Disclosing Work Product to the Government

May 26, 2010

Except for a few random cases, most courts have now settled on a general rule that companies disclosing work product to the government waive that protection. See, e.g., D.G. v. Henry, Case No. 08-CV-74-GKF-GHM, 2010 U.S. Dist. LEXIS 28000 (N.D. Okla. Mar. 24, 2010) (disclosing work product to the Oklahoma legislature waived that protection).

However, some courts continue to look for a way around that general principle. The District of Arizona recently held that a nursing home did not waive its work product protection by disclosing work product to the Arizona Department of Health Services – inexplicably holding that this was the “majority view among federal cases.” Bickler v. Senior Lifestyle Corp., No. CV-09-00726-PHX-DGC, 2010 U.S. Dist. LEXIS 24227 (D. Ariz. Mar. 4, 2010). Five days later, the District of Rhode Island analyzed the issue in U.S. Real Estate Limited Partnership v. Colonial American Casualty & Surety Co., C.A. No. 08-301ML, 2010 U.S. Dist. LEXIS 21322 (D.R.I. Mar. 9, 2010). The court originally found that defendant Colonial had waived its protections by voluntarily disclosing information to the New Hampshire Attorney General and Department of Insurance – but reversed itself when reminded of a specific New Hampshire statute protecting such shared documents from discovery. Most significantly, Judge Paul Crotty of the Southern District of New York held just a few days later that defendant SafeNet’s disclosure of protected documents to the SEC and the U.S. Attorney’s Office did not waive either the attorney‑client privilege or the work product doctrine, because SafeNet produced the documents pursuant to confidentiality agreements that contained “a non‑waiver provision that preserves SafeNet’s privilege claims against subsequent third‑party private litigants.” Police & Fire Ret. Sys. v. SafeNet, Inc., No. 06 Civ. 5797 (PAC), 2010 U.S. Dist. LEXIS 23196, at *5 (S.D.N.Y. Mar. 12, 2010). Judge Crotty noted the “strong public interest in encouraging disclosure and cooperation with law enforcement agencies,” and concluded that “violating a cooperating party’s confidentiality expectations jeopardizes this public interest.” Id. at *7.

It will be interesting to see if this new series of cases reignites the debate about the waiver effect of disclosing work product to the government. In the meantime, the decisions allow cooperating corporations to resist private litigants’ efforts to seek any documents the company disclosed to the government.