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When withholding documents or communications arguably protected
by both the attorney-client privilege and the work product
protection, wise litigants consider both. The privilege is
absolute, but fragile. The work product doctrine provides only
qualified protection, but can cover communications with third
parties and survive disclosure to third parties.
LIn United States v. Ghavami, No. 10 Cr. 1217 (KMW) (JCF), 2012
U.S. Dist. LEXIS 80593 (S.D.N.Y. June 5, 2012), the government
sought to use secret recordings taken by a government cooperator in
a bid rigging case against several defendants. In some of the
recordings, the defendants disclosed advice they had received from
their company's lawyer. The court held that such disclosure to
the government cooperator waived the company's attorney-client
privilege. However, the lawyer's litigation-related advice also
deserved work product protection. Because disclosing work product
to an apparently friendly third party does not waive that
protection, the defendants' disclosure to their supposed friend
(secretly helping the government) did not waive that protection.
Ten days later, a New York state court analyzed defendant
Colgate-Palmolive's interview of a former employee, who was
represented during the interview by his own lawyer. The state court
found that the former employee's lawyer's presence aborted
privilege protection for the interview, but not the separate work
product protection. The court explained that the lawyer's
presence did not "pose[] a danger of ultimate disclosure of
[Colgate's lawyer's] mental impressions to Plaintiffs'
counsel or to anyone else who might be considered Colgate's
adversary." Bernard v. Brookfield Props. Corp., No. 107211/08,
2012 N.Y. Misc. LEXIS 2993, at *21 (N.Y. Sup. Ct. June 15, 2012)
(unpublished opinion).
Because the privilege and the work product doctrine have
separate strengths and weaknesses, litigants normally should
consider both protections when the opportunity arises.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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