D.C. Circuit Articulates Broad View of the Work Product Doctrine

August 25, 2010

Last year, the First Circuit adopted a very narrow view of the work product doctrine – applying it only to documents used to “assist” in litigation. United States v. Textron Inc., 577 F.3d 21 (1st Cir. 2009). Since the United States Supreme Court denied certiorari in that case, nervous companies have been looking for further circuit court pronouncements about the work product doctrine. Textron Inc. v. United States, 130 S. Ct. 3320 (2010).

In United States v. Deloitte LLP, No. 09-5171, 2010 U.S. App. LEXIS 13226 (D.C. Cir. June 29, 2010), the D.C. Circuit adopted a very broad approach to the work product doctrine. The court held that (1) the work product doctrine protects “intangible” things under federal common law, even if they are not explicitly covered by Rule 26(b)(3); (2) the work product doctrine protects documents prepared “because of” anticipated litigation – implicitly rejecting the narrower view of Textron; and (3) Dow Chemical did not waive its work product protection by sharing work product with its outside auditor Deloitte. In explaining the third point, the D.C. Circuit noted that “Dow had a reasonable expectation of confidentiality because Deloitte, as an independent auditor, has an obligation to refrain from disclosing confidential client information.” Id. at *28. The court also recognized that “independent auditors have significant leverage over the companies whose finances they audit,” and that finding a waiver based on disclosure to an auditor “might discourage companies from seeking legal advice and candidly disclosing that information to independent auditors.” Id. at *32.

After the frightening First Circuit decision in Textron, this opinion should calm many corporations’ nerves.