1. (§16.59) Waiver

• Library: Federal Civil Litigation in Oregon (OSBar) (2009 Ed.)

1. (§16.59) Waiver

The standard for waiver of the work-product immunity is more lenient than the standard for waiver of the attorney-client privilege. McMorgan & Co. v. First Cal. Mortg., 931 F Supp 703, 709 (ND Cal 1996) ("The majority rule is that [inadvertent] disclosure to a third party does not automatically waive work product protection" unless an adverse party gains access to the information). Nonetheless, as with the attorney-client privilege, the work-product immunity can be waived by voluntary disclosure to adverse parties (see §16.34); inadvertent disclosure to third parties (see §§16.35-16.36); selective disclosure (see §16.37); and placing work product in issue (see §16.39).

NOTE: If advice of counsel is pleaded as a defense to a claim involving willful conduct, work-product protection is waived as to both undisclosed and disclosed documents and information. Adidas Am., Inc. v. Payless Shoesource, Inc., 2006 US Dist LEXIS 79154, at **6-7, 2006 WL 2999739 (D Or Oct 19, 2006). As with the attorney-client privilege, however, waiver of work-product protections in this context might not extend to the trial lawyer's work product. In re Seagate Tech., LLC, 497 F3d 1360, 1374 (Fed Cir 2007), cert. denied, 128 S Ct 1445 (2008).

Disclosing work product to testifying experts for use in developing the experts' opinions generally waives the work-product protection. Karn v. Ingersoll Rand, 168 FRD 633, 639 (ND Ind 1996); but see Krisa v. Equitable Life Assur. Soc'y, 196 FRD 254, 258-260 (MD Penn 2000) ("core work product"—documents prepared by lawyer that contain mental impressions and thought processes—may be disclosed to testifying expert without waiving privilege); McDonald v. Sun Oil Co., 423 F Supp2d 1114, 1122 (D Or 2006), aff'd in part,...