Avoiding Waiver When Disclosing Facts to the Government: Part II

February 19, 2014

Last week’s Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any “underlying factual material explicitly referenced” in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2103).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on “interview materials” Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials “unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC.” Id. at *10. Interestingly, the court rejected plaintiffs’ argument that the company crossed that line “where the presentations assert that a particular witness made a statement.” Id. at *7. The court acknowledged that such a representation to the SEC obviously implied “that an interview took place” and also provided “a strong inference that it was memorialized in some way” – but ultimately concluded that “plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC.” Id. at *7-8.

The court then turned to the company’s redactions in the interview summaries produced in response to the earlier ruling. Next week’s Privilege Point will address that analysis.