Court Limits Waiver of Work-Product Privilege

The disclosure of pre-litigation “work” may waive some, but not all, of the work-product privilege, according to one federal court. Though the circuit may be divided on whether the privilege may be waived at all, there is general consensus that when waiver occurs it is limited to what was actually disclosed. ABA Litigation Section leaders caution practitioners to know the status of this privilege in their jurisdiction and offer suggestions for making such disclosures.

Construction Company Blames Supplier

In Brasfield & Gorrie, LLC v. Hirschfeld Steel Group LP, a construction company received a contract to repair a section of interstate in Alabama. Plans called for certain arches to be erected, but during their installation there were “nonconformances” with the material. The construction company blamed the failure on the materials supplier and informed it of a potential breach.

The supplier contracted with a third-party engineering firm to examine the issue. The supplier informed the construction company about this investigation and disputed the “nonconformances.” The construction company was not persuaded and issued a notice of default to the supplier. The supplier provided the report from the engineering firm to the construction company in an attempt to cure the default. The construction company informed the supplier the report was insufficient, terminated the purchase order contract, and initiated litigation.        

Third-Party Engineering Firm Subpoenaed

The construction company issued a subpoena to the engineering firm seeking all documents and information related to their investigation and the reports. The construction company also sought depositions from the firm pursuant to Federal Rule of Civil Procedure 30(b)(6). The firm objected to the subpoena and depositions claiming it was a nontestifying expert retained in anticipation of litigation and that the reports “were prepared in advance of litigation for another party.”

The U.S. District Court for the Northern District of Alabama first considered the reports, noting that work-product protection extends to documents “prepared by parties themselves and/or other non-attorney representatives, as long as the documents are prepared in anticipation of litigation.” The court further noted documents should receive work-product protection “as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation” but that “[l]itigation need not necessarily be imminent.”

The court pointed out that the engineering firm was hired six months after the notice of potential defects was sent. Because litigation had been threatened, the privilege applied. The court held the privilege was waived, however, because the supplier voluntarily shared the reports with the construction company.

How Far Does the Waiver Go?

The court noted that the subpoena went further than just the actual reports in seeking information related to “facts, analyses, investigation, and opinions expressed in or absent from these reports.” The construction company claimed that any privilege over information related to the reports, but not directly disclosed, was also waived. The construction company argued that disclosing the reports caused a complete subject-matter waiver.

The court recognized that the U.S. Court of Appeals for the Eleventh Circuit has not addressed the issue of whether work-product protections for nontestifying experts are waivable at all. Futher, while the relevant district courts are divided on waivability, the courts that allow waiver have all limited its scope. In cases where partial disclosures of an expert’s findings were made, the waiver of privilege applied only to what was actually disclosed. In this case, the court held that the supplier only waived its work product privilege for the actual reports given to the construction company. All other materials and information remained privileged.

Be Cautious, or Reach an Agreement

Practitioners should be sure to understand the rules that govern pretrial disclosures in their jurisdiction. “This is an interesting opinion because it is in a circuit where the law appears unsettled,” identifies Ian H. Fisher, Chicago, IL, cochair of the Section’s Class Actions & Derivative Suits Committee. “It’s an additional reminder that you should always check the rules every time you are ready to make a disclosure to the other side,” he adds.

Fisher also believes the case could have turned out differently had the protections been based on the attorney-client privilege. “It is pretty well settled that subject-matter waiver can occur under the attorney-client privilege as you cannot use the privilege as a sword and a shield,” Fisher points out. “You cannot state we have this great statement from our client, and we will only share it with you to drive settlement at a later date,” he explains.

Though the court held that disclosure of work-product information does not extend beyond what was actually disclosed, Section leaders suggest extra precaution to remove any doubt and allow for more robust disclosures. “The parties could have agreed, by contract stipulation, that they would not argue waiver in this sense,” suggests Fisher.

Disclosure might still be the right strategy, but only after full discussion with the client. “This would be a good topic to discuss with in-house counsel prior to the initiation of pretrial disclosures,” advises Ashley J. Heilprin, New Orleans, LA, chair of the Section’s Pretrial Practice & Discovery Committee. “You still might reach the same conclusion, but there may be some strategic decisions that would allow your client to proceed with disclosure,” she concludes.