Cadwalader Loses Work Product and Privilege Claims for 51 Internal Investigation Witness Interview Memoranda: Part II

July 26, 2017

Last week’s Privilege Point explained that Cadwalader Wickersham & Taft’s client Washington Metropolitan Transit Authority (WMATA) lost a work product claim for 51 witness interviews the firm prepared during its internal investigation into self-dealing at WMATA. Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017).

Unlike the court’s focus on the investigation’s primary business motivation in rejecting the work product claim, the court’s privilege analysis found that WMATA waived its privilege protection. The court noted that WMATA publicly released the final Cadwalader report — which “disclosed counsel’s legal and factual conclusions,” and “cite[d] extensively to the interview memoranda throughout the entirety of the document.” Id. at *18-19. The court acknowledged a Cadwalader lawyer’s declaration that the interview memoranda references “were intended only for use by Cadwalader” — but noted that “WMATA failed to remove the references . . . from the version of the [Cadwalader] Report that was made available to the public.” Id. at *19 n.1. The court also noted that WMATA “has also used the [Cadwalader] Report to its advantage in this litigation” – by “us[ing] the [Cadwalader] Report and facts disclosed in that report to support its claims and defenses.” Id. at *19. The court therefore found a subject matter waiver, and ordered WMATA to produce all of Cadwalader’s 51 witness interview memoranda except the portions which (1) “contain subjects not covered by the [Cadwalader] Report,” and (2) “material and other comments, if any, as to a lawyer’s mental impressions.” Id. at *20.