Waiver Implications of Disclosing Work Product to the Government

April 26, 2023

Last week’s Privilege Point described a court’s refreshingly correct acknowledgment that disclosing work product to friendly third parties does not waive that robust protection — in contrast to the more fragile privilege protection.

In the same opinion, the court in Pfizer, Inc. v. Regor Therapeutics Inc., helpfully explained three possible waiver implications of disclosing protected work product to the government: (1) such disclosure would not waive work product protection if “the private party and the government agency were allied in an active litigation”; (2) such disclosure would not waive work product protection if it was compelled, but could waive work product protection if the disclosure was only impliedly “coerc[ed]” (such as disclosure intended to “‘forestall enforcement proceedings'”); (3) such disclosure would waive work product protection in “cases in which the private party voluntarily discloses its work product to a government agency ‘to incite it to attack the informant’s adversary.'” Civ. No. 3:22-cv-00190 (JAM), 2023 U.S. Dist. LEXIS 18898, at *16-17 (D. Conn. Feb. 3, 2023) (citations omitted).

The government is almost always an adversary, so lawyers must carefully assess the waiver impact of disclosing work product to government authorities — relying on such helpful analyses from courts that get it.