Does Disclosing Work Product Trigger a Subject Matter Waiver?

February 16, 2022

Disclosing attorney-client privileged communications can trigger a subject matter waiver if made in a judicial setting to gain some advantage. This subject matter waiver danger reflects the classic “sword-shield” analogy with which lawyers are familiar.

But disclosing protected work product involves an entirely different analysis. After all, litigants prepare work product intending to eventually disclose much of it: interrogatory answers; witness lists; opening statements; etc. All courts agree that disclosing work product does not automatically trigger a broad subject matter waiver. In Brasfield & Gorrie, LLC v. Hirschfeld Steel Group LP, No. 2:20-cv-00984-LSC, 2021 U.S. Dist. LEXIS 224903 (N.D. Ala. Nov. 22, 2021), the court cited an earlier decision in explaining that “[d]ue to the sensitive nature of work-product materials and the policy behind maintaining their secrecy, generally speaking, when the work product protection has been waived, it is ‘limited to the information actually disclosed, not subject matter waiver.'” Id. at *10 (citation omitted). The court also quoted Professor James Wm. Moore: “[a] waiver of work-product protection encompasses only the items actually disclosed.” Id. at *10-11 (citing 6 James. W. Moore, et al., Moore’s Federal Practice ยง 26.70[6][c]). The court also articulated even more forcefully this basic doctrine as it applies to opinion work product: “subject-matter waiver simply does not apply to opinion work product documents.” Id. at *12.

Lawyers should keep in mind this critical and favorable distinction between the robust work product doctrine protection and the more fragile attorney-client privilege protection.