Chapter 48 Intentional, Inadvertent, or Implied Waiver

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 48

INTENTIONAL, INADVERTENT, or IMPLIED WAIVER

48.1 INTRODUCTION

As in the attorney-client privilege context, work product protection can be waived expressly (through intentional or inadvertent disclosure) or impliedly.

48.2 INTENTIONAL DISCLOSURE IN THE CORPORATE CONTEXT

Disclosing work product in the corporate setting rarely waives work product protection. [48.201]

Most courts hold that disclosure to other corporate affiliates or constituents does not waive work product protection. [48.202]

• Examples include: other company owned by the same person; shareholder non-control group employee in a control group state member of the corporate board of directors former employee; employee of a wholly owned subsidiary.

• In certain rare situations, adversity among corporate constituents might change this analysis.

In contrast to the great risk of waiving privilege protection upon disclosure to corporate agents or consultants, ¹ ( disclosing work product to such third parties usually does not waive that separate robust protection. [48.203]

Most courts hold that disclosure to corporate agents or consultants does not waive work product protection.

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• Examples include public relations consultant; advertising agency; insurance broker; prospective consultant; investment banker; consultant; accountant acting as a consultant.

Most courts apply the same rule to corporations disclosing work product to their auditors. [48.204]

Some courts find that disclosing work product to other third parties in a corporate setting does not waive work product protection. [48.205]

• Examples include potential investors; potential purchaser of a patent; trademark assignee; business allies; non-party aligned in interest in a patent case; customer; reinsurance company; liability insurance company (by an insured); non-adverse company; company bondholder.

In contrast, disclosing work product to adversaries in a corporate context can waive corporations' work product protection.

• Examples include employer, to which a worker's compensation carrier disclosed work product; employee of a corporate adversary, who later shared the work product with the company's executives; reinsurance company with whom insurance company had a dispute; hostile former employee of another party.

Unlike the general rule finding that disclosures during merger transactions usually waive privilege protection, disclosing work product in such settings requires a more subtle analysis. [48.206]

• For instance, corporations disclosing work product to potential acquiring companies (which might inherit their litigation) do not usually waive that protection, because it does not substantially increase the chance that underlying adversaries might obtain the work product.

Most courts hold that corporations' disclosure to other companies in such settings does not waive their work product protection.

• Examples include a company that ultimately acquired it; a company during merger negotiations that ultimately proved unsuccessful.

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48.3 INTENTIONAL DISCLOSURE TO THE GOVERNMENT

Disclosing work product to the government usually waives work product protection, despite some exceptions and efforts to change the basic rule. [48.301]

Certain very specific federal statutes and regulations allow financial institutions to share privileged communications and work product with their regulators, without waiving those protections. ² [48.302]

Federal Rule of Evidence 502 originally included a proposed provision allowing disclosure of work product to the government—without automatically permitting other third parties access to that work product. [48.303]

•	However, the rule's drafters deleted that selective waiver provision from the final rule. 3
VA	A Virginia statute 4 parallels Federal Rules of Evidence 502 in limiting both the circumstances when disclosure of privileged or work product-protected communications causes a waiver, and the scope of any waiver.

As in the privilege context, disclosing historical facts to the government usually does not waive work product protection. [48.304]

Determining the waiver impact of disclosing work product to the government has generated a public policy debate. [48.305]

• Some have argued that public interest in favor of corporate cooperation with government investigations should allow selective waivers—permitting corporations to disclose work product to the government without making it vulnerable to third parties' discovery.

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• However, that argument has not generated substantial case law support or legislative enactments allowing such selective waivers. ⁵

Under the majority view, disclosing work product to the government waives that protection, just as it waives the attorney-client privilege protection. [48.306]

Most courts apply this general...