Southern District of New York Takes a Narrow View of the Work Product Doctrine Protection

May 11, 2011

Last week’s Privilege Point explained that a Southern District of New York magistrate judge found that the attorney-client privilege did not protect a Dewey & LeBoeuf lawyer’s interview (on behalf of one client) of another jointly represented client’s employee. Univ. Sports Publ’ns Co. v. Playmakers Media Co., No. 09 Civ. 8206 (RJH) (DF), 2011 U.S. Dist. LEXIS 30675 (S.D.N.Y. Mar. 21, 2011). Judge Freeman then turned to plaintiff University Sports’ work product claim.

Judge Freeman explained that within three days of learning of the possible theft of its confidential data, University Sports hired Dewey & LeBoeuf. The firm immediately began to investigate both the theft and the thief’s transmission of the stolen data to University Sports’ competitor (the defendant). The judge found that this step “would have been taken by any similarly situated prudent company in the ordinary course of business, regardless of whether it had any intent to pursue litigation” against the competitor. Id. at *23. She therefore found that “documents and communications made in connection with the investigation” up to the date of the interview did not deserve work product protection. Id.

The Southern District of New York often takes a narrow view of both the attorney-client privilege and the work product doctrine. Lawyers litigating in that court must be prepared to deal with some very restrictive case law.