Case: United States v. Thompson, 562 F.3d 387 (D.C. Cir. April 17, 2009)
Status: Ready, Aim, Fire
Before trial in the district court, a criminal defendant successfully compelled production of material the government had obtained from defendant's employer. The employer formerly provided the government with its work-product privileged material (including internal investigation documents) in order to settle a government investigation into the employer's own wrongdoing. The employer appealed the district court order, claiming that the limited one-time disclosure it made to the government was not a waiver of its work-product privilege to any other party. Because of the employer's third-party status and the privilege issues involved, the Court of Appeals allowed the appeal. Given the government's disclosure and production obligations to a criminal defendant, the court determined that the assurances of ongoing privilege protection the employer received were neither sufficiently strong nor sufficiently unqualified to prevent production to the defendant. However, the court of appeals did instruct the district court to use a protective order, if necessary, to avoid further public disclosure of material covered by the confidentiality agreement between the employer and the government.
- The court emphasized that the selective waiver that's occasionally allowed for production of work-product privileged materials doesn't work with the attorney-client privilege. Once you voluntarily produce documents covered by the attorney-client privilege, you generally won't be allowed to assert the privilege as a bar to production to a different party.
- Arguments against a finding of waiver based upon the policy considerationssupporting the work-product doctrine may find a more receptive audience outside the criminal law arena.
- Courts will look to the time of production to determine the reasonableness of any expectations regarding the ongoing confidentiality of disclosed privileged material. If you want to try to make a one-time disclosure and preserve a work-product privilege, you will need to demonstrate your intentions clearly and unequivocally.
Regardless of the terms or surrounding circumstances, even a limited disclosure of privileged materials in response to a governmental investigation runs a substantial risk of a finding of a waiver in any subsequent proceeding.
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