Apart from an aberrational case now and then, most courts find that companies disclosing privileged communications to the government waive that fragile protection. But companies do not always waive the more robust work product protection if they disclose work product to the government – if the government acts as an ally rather than as an adversary. For instance, many courts would hold that a company did not waive its investigation-related work product by sharing it with a government entity that is conducting a parallel investigation into some third party's wrongdoing.
But as in so many other areas, work product protection involves a more subtle analysis than the privilege. In Audet v. Fraser, Case No. 3:16cv940 (MPS), 2019 U.S. Dist. LEXIS 10974 (D. Conn. Jan. 22, 2019), defendant sought plaintiffs' lawyer's notes taken during his interview of a defendant's former CEO. Plaintiffs had shared the interview notes with the FBI. The court acknowledged that disclosing work product to the government does not necessarily waive that protection. But the court then pointed to various cases holding that unsolicited disclosure to the government waived work product protection if the disclosure was "made in the hope that the government will 'attack' the disclosing party's adversary" or made "voluntarily to stimulate beneficial official action". Id. at *5-6 (citations omitted). The court also noted that plaintiff "voluntarily shared the notes with the FBI" and that "[n]othing in the record suggested that the disclosure was made pursuant to any agreement that the notes would be kept confidential." Id. at *8.
Companies should assume that disclosing privileged communications to the government waives that fragile protection. In the work product context, companies assisting the government should always be wary of disclosing work product to the government, and should count on waiving that protection if they were motivated by hoping to prompt the government to attack an adversary.
Published April 2, 2019.