United States v. Sanmina Corporation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-17036

Petitioner-Appellee,

D.C. No.

v. 3:15-cv-00092-

WHA

SANMINA CORPORATION AND

SUBSIDIARIES,

Respondent-Appellant. OPINION

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted February 11, 2020

San Francisco, California

Filed August 7, 2020

Before: Johnnie B. Rawlinson and Consuelo M. Callahan,

Circuit Judges, and Susan R. Bolton,* District Judge.

Opinion by Judge Callahan

*

The Honorable Susan R. Bolton, United States District Judge for

the District of Arizona, sitting by designation.

2 UNITED STATES V. SANMINA CORP.

SUMMARY **

Tax

The panel affirmed in part and reversed in part the

district court’s determination, that taxpayer Sanmina

Corporation had waived attorney-client privilege and work-

product protection for certain memoranda prepared in

support of a worthless stock deduction on Sanmina’s federal

tax return, in a petition by the Internal Revenue Service to

enforce a summons for those memoranda.

The memoranda in question (Attorney Memos) were

authored by Sanmina’s in-house counsel and referenced in a

valuation report prepared by DLA Piper (DLA Piper Report)

in support of the worthless stock deduction. The district

court initially denied enforcement of the summons. This

court remanded for in camera review of the Attorney

Memos. On remand, the district court determined that the

Attorney Memos were covered by both attorney-client

privilege and work-product protection, but that those

privileges had been waived. On appeal, the parties did not

dispute that the Attorney Memos were privileged.

The panel first held that Sanmina expressly waived the

attorney-client privilege when it disclosed the Attorney

Memos to DLA Piper. The panel next held that Sanmina did

not expressly waive work-product immunity merely by

providing the Attorney Memos to DLA Piper, but it

impliedly waived the privilege when it subsequently used the

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. SANMINA CORP. 3

DLA Piper Report to support its tax deduction in an IRS

audit, because such use was inconsistent with the

maintenance of secrecy against its adversary. The panel

ordered disclosure of only the factual content of the Attorney

Memos on which the DLA Piper Report relies, and

remanded for the district court to determine the specific

portions of the Attorney Memos that should be disclosed to

the IRS.

COUNSEL

Michael C. Lieb (argued) and Leemore L. Kushner, Ervin

Cohen & Jessup LLP, Beverly Hills, California, for

Respondent-Appellant.

Bethany B. Hauser (argued) and Deborah K. Snyder,

Attorneys; Richard E. Zuckerman, Principal Deputy

Assistant Attorney General; Tax Division, United States

Department of Justice, Washington, D.C.; for Petitioner-

Appellee.

4 UNITED STATES V. SANMINA CORP.

OPINION

CALLAHAN, Circuit Judge:

Sanmina Corporation (“Sanmina”) claimed a worthless

stock deduction on its federal tax return, which triggered an

audit by the United States Internal Revenue Service (“IRS”)

of Sanmina’s tax returns. To support the deduction,

Sanmina provided to the IRS a valuation report that had been

prepared by DLA Piper, LLP, which in turn cited two

memoranda authored by Sanmina in-house counsel. The

IRS issued a summons for the memoranda, and Sanmina

objected on the basis that they were protected both by

attorney-client privilege and the attorney work-product

doctrine.

After the district court initially denied enforcement of the

summons, the IRS appealed to this court. We remanded for

in camera review of the memoranda but retained jurisdiction

over the appeal. United States v. Sanmina, 707 F. App’x 865

(9th Cir. 2017). On remand, the district court determined

that the memoranda were covered by both attorney-client

privilege and work-product protection, but that those

privileges had been waived.

We affirm in part and reverse in part the district court’s

findings. We agree that Sanmina’s disclosure of the

memoranda to DLA Piper waived the attorney-client

privilege. However, such disclosure did not waive their

work-product protection, except for the factual content of the

memoranda. Accordingly, we grant in part and deny in part

the IRS’s enforcement petition, and remand to the district

court to issue a disclosure order consistent with this opinion.

UNITED STATES V. SANMINA CORP. 5

I.

In its federal tax return, Sanmina claimed a worthless

stock deduction arising from its ownership of shares of stock

in a Swiss subsidiary, Sanmina International AG (“Sanmina

AG,” also referred to internally as “Swiss-3600”). The

deduction totaled $503 million and offset all of Sanmina’s

taxable income for the 2008 tax year, with carryforward

losses. The IRS subsequently initiated an examination of

Sanmina’s federal income tax liabilities of Sanmina

Corporation and subsidiaries for the 2008, 2009, and 2010

taxable periods.

To support the worthless stock deduction, Sanmina

provided the IRS with a valuation report prepared by DLA

Piper (the “DLA Piper Report”), which referred to two

memoranda authored by Sanmina’s in-house counsel (the

“Attorney Memos”) in a footnote of the report. The IRS then

issued a summons for the Attorney Memos. In response,

Sanmina declined to produce the memoranda, invoking

attorney-client privilege and attorney work-product

protection. However, Sanmina agreed to disclose to the IRS

the “non-privileged documents on which the analyses

contained in the [Attorney Memos] are based.”

A.

The DLA Piper Report is 102 pages and titled on the

cover page as “Sanmina-SCI Corporation – Estimate of Fair

Market Value of Sanmina International AG – Valuation as

of June 30, 2009.” Each page contains the label “Attorney-

Client Privilege – Confidential Draft.” The report begins

with a two-page letter, which is addressed to Sanmina’s in-

house counsel, and signed by a DLA Piper partner and

economist. It states in part:

6 UNITED STATES V. SANMINA CORP.

DLA Piper . . . has concluded a fair market

value (“FMV”) analysis supporting your

assessment of insolvency of Sanmina

International AG . . . . We understand our

summary report will be used solely for tax

compliance purposes, specifically for

confirming the worthlessness of Sanmina

International AG’s common shares. Our

estimate of value does not constitute a

fairness opinion or an estimate of FMV for

any other purpose and should not be relied

upon as such.

The two-page letter concludes: “Based on a combination of

DCF and ANA analyses, we estimate the FMV of a

marketable, controlling interest in Sanmina AG to be a

negative US$49 million as of the Valuation Date. The value

of Subject Company’s cumulative liabilities therefore

exceeded the value of its assets by US$49 million.”

In the report’s Executive Summary, a section headlined

“Nature of Engagement” states:

Sanmina . . . has asked DLA Piper . . . to

provide an estimate of the fair market value

(“FMV”) of 100 percent of the common stock

of its wholly-owned subsidiary . . . . as of

June 30, 2009 (“Valuation Date”). We

understand that this analysis will be used by

Sanmina’s management (“Management”) to

make a determination of value on liquidation

of Subject Company as of the Valuation Date

in the context of a restructuring of Sanmina’s

international operations. In this content [sic],

it is Management’s intent to assess whether

UNITED STATES V. SANMINA CORP. 7

Sanmina AG’s common stock as of the

Valuation Data [sic] was worthless.

Furthermore, it is our understanding that

Sanmina will not disclose our analysis to

third parties other than its financial auditors

and interested tax authorities without our

expressed written consent.

The footnote referencing the Attorney Memos is found

on page 56 of the report within the following paragraph:

We believed that the book value of each

liability provides the best estimation of its

FMV. However, based on interviews with

Management and related documents

provided by Management,6 we concluded

that the intercompany loan between Sanmina

Holding AB and Sanmina Kista (about

US$ 90 million) as well as the intercompany

non-trade receivable between Sanmina-SCI

and Sanmina AG [i.e., Swiss 3600] (about

US$ 113 million) should be disregarded.

In the text of footnote 6 above, three documents are listed

without further explanation: (1) “Memo draft: Stock and

Debt Losses on Swiss-3600, March 11, 2009”; (2) “Capital

Contribution Agreement between Sanmina-SCI Corporation

and Sanmina International AG, July 3, 2006; and

(3) “Memo: Guarantee and Capital Contribution Agreement

Concerning Sanmina International AG, July 2, 2006.” The

first and third documents listed are the Attorney Memos at

issue in this case.

8 UNITED STATES V. SANMINA CORP.

B.

The Attorney Memos are described by Sanmina’s in-

house counsel as follows:

The 2006 Attorney Memo is a memorandum

dated July 2, 2006 from a former Sanmina tax

department attorney named Chris Croudace

to “File.” The memorandum discusses the

legal analysis supporting the execution of

certain agreements among Sanmina and its

subsidiaries, including the reason for those

agreements, their legal enforceability, and

their tax treatment. The memorandum

includes citations to, and analysis of certain

IRS letter rulings and two tax court decisions.

. . . The 2009 Attorney Memo is a draft

memorandum dated March 11, 2009. The

name of the author is not apparent from the

face of the document, but I was able to

ascertain that the author is Mark L. Johnson,

a former Sanmina tax department lawyer.

Each page of the document bears the notation

“Confidential – Work Product Privilege.”

The 2009 Attorney Memo analyzes the tax

effect of the liquidation of “Swiss-3600,”

which is Sanmina’s internal designation for

Sanmina International AG. The 2009

Attorney Memo contains a factual discussion

and the bulk of the memo consists of a legal

analysis of those facts and their effect on the

liquidation of Swiss-3600. It cites IRS

revenue rulings, tax code provisions, tax

UNITED STATES V. SANMINA CORP. 9

court decisions, and a decision of the U.S.

Supreme Court.

A privilege log produced by Sanmina demonstrates that the

Attorney Memos were shared outside of Sanmina only with

Ernst & Young, KPMG, LLP, and DLA Piper. Sanmina’s

Director of Tax Controversy and Tactical Support, Brian

Dulkie, explains in an affidavit that the Attorney Memos

were “were provided to Ernst & Young . . . and KPMG to

support Sanmina’s taking of a worthless stock deduction”

and both those firms “provided tax advice related to

Sanmina’s decision to take the worthless stock.” According

to Dulkie:

Given the significance of that tax treatment,

Sanmina proceeded with the expectation that

IRS would likely call upon Sanmina to

defend the worthless stock deduction.

Anticipating the possibility that the Service

might adopt an adverse position, Sanmina

sought advice from DLA Piper, Ernst &

Young and KPMG concerning the propriety

of the deduction.

C.

In January 2015, the IRS filed a petition to enforce the

summons for the Attorney Memos, and the district court

issued an order to show cause to Sanmina. After briefing

from the parties and a hearing, the district court (Magistrate

Judge Paul S. Grewal) issued an order denying enforcement

of the summons, finding that the memoranda were privileged

and that the privileges were not waived. The IRS appealed.

In December 2017, a panel of this court remanded the

case “for the district court to review the 2006 and 2009

10 UNITED STATES V. SANMINA CORP.

memos in camera to determine whether the documents

requested by the government are privileged to any degree”

and “retain[ed] jurisdiction over this appeal.” Sanmina,

707 F. App’x at 866. In June 2018, after some dispute

between the parties regarding the scope of the remand and a

request for clarification from the district court, this court

issued another order defining the scope of remand as:

(1) whether the memoranda are privileged in the first

instance and (2) whether such privilege was waived.

D.

On remand, the district court (Judge William H. Alsup)

issued an order that affirmed “Judge Grewal’s finding that

the memoranda are protected by the attorney-client privilege

and attorney work-product doctrine,” but found that the

privileges were “waived when Sanmina disclosed the

memoranda to DLA Piper to obtain an opinion on value, then

turned over the valuation report to the IRS.” Based on its in

camera review of the memoranda, the court found that they

were protected both by (1) attorney-client privilege because

“Sanmina sufficiently showed that the memoranda were

prepared by in-house counsel, in response to a request for

legal advice, and contain legal advice communicated in

confidence to Sanmina executives” and (2) attorney work-

product doctrine because “while there was no pending

litigation when the memoranda were drafted, Sanmina

reasonably anticipated that the IRS would scrutinize its

$503 million stock deduction, so it engaged in-house

counsel to analyze the consequences of taking such a

deduction.”

As to waiver, the district court concluded:

Any attorney-client privilege that might have

attached to the memoranda was waived when

UNITED STATES V. SANMINA CORP. 11

Sanmina voluntarily disclosed the

memoranda to DLA Piper, not for the

purpose of receiving legal advice, but for the

purpose of determining the value of Sanmina

AG’s common stock. Sanmina engaged

DLA Piper for the purpose of conducting a

fair market value analysis to be used for tax

compliance reasons. Anticipating that the

IRS would adopt an “adverse position” to

taking a $500 million deduction, Sanmina

sought DLA Piper’s services in producing the

valuation report. Thus, the point of waiver

took place when Sanmina provided the

privileged memoranda to DLA Piper for the

purpose of producing a valuation report to

then turn over to the IRS. Sanmina cannot

disclose a privileged attorney communication

relevant to an issue of material fact, then

invoke privilege to shield that

communication from discovery.

The district court did not conduct a separate analysis for

waiver of work-product protection apart from its discussion

of waiver for attorney-client privilege but relied on Weil v.

Investment/Indicators, Research & Management, Inc.,

647 F.2d 18 (9th Cir. 1981), as “the controlling decision in

our circuit” for both issues.

Although its conclusion that waiver occurred when

Sanmina disclosed the Attorney Memos to DLA Piper was

“dispositive” of the waiver question, the district court also

alternatively held that “Sanmina’s disclosure of the DLA

Piper valuation report to the IRS waived any applicable

privilege as to materials used to reach the valuation.” Citing

Fed. R. Evid. § 502(a)(3), the district court reasoned that

12 UNITED STATES V. SANMINA CORP.

because “DLA Piper’s valuation report relied on the contents

of the memoranda” and “based its conclusions, at least in

part, on the two memoranda at issue,” “[t]he analyses that

informed the valuation report’s conclusions should, in

fairness, be considered together.” The court rejected

Sanmina’s argument “that the footnote merely disclosing the

existence of the memoranda did not waive any applicable

privilege as to their entire contents,” reiterating that “it

would be fundamentally unfair for Sanmina to disclose the

valuation report while withholding its foundation.”

II.

The district court found—and the parties do not

dispute—that the Attorney Memos constituted both

privileged attorney-client communications and protected

attorney work product. Thus, the only issue before us is the

question of waiver—specifically, whether Sanmina waived

attorney-client privilege or work-product protection by

providing the memoranda to DLA Piper and providing the

DLA Piper Report to the IRS. Because the Attorney Memos

constitute attorney-client communications and protected

attorney work product, we must find that Sanmina waived

both privileges to mandate disclosure of the memoranda.

Whether a privilege has been waived is a mixed question

of fact and law that we review de novo. United States v.

Plache, 913 F.2d 1375, 1379 (9th Cir. 1990); United States

v. Mendelsohn, 896 F.2d 1183, 1188 (9th Cir. 1990). We

review for clear error a district court’s factual findings for

attorney-client privilege and work-product doctrine. See

United States v. Richey, 632 F.3d 559, 563–64 (9th Cir.

2011). “A finding is clearly erroneous if it is illogical,

implausible, or without support in the record.” United States

v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010).

UNITED STATES V. SANMINA CORP. 13

III.

A.

The attorney-client privilege protects confidential

communications between attorneys and clients, which are

made for the purpose of giving legal advice. Upjohn Co. v.

United States, 449 U.S. 383, 389 (1981). Whether

information is covered by the attorney-client privilege is

determined by an eight-part test:

(1) Where legal advice of any kind is sought

(2) from a professional legal adviser in his

capacity as such, (3) the communications

relating to that purpose, (4) made in

confidence (5) by the client, (6) are at his

instance permanently protected (7) from

disclosure by himself or by the legal adviser,

(8) unless the protection be waived.

Graf, 610 F.3d at 1156.

“The attorney-client privilege may extend to

communications with third parties who have been engaged

to assist the attorney in providing legal advice,” Richey,

632 F.3d at 566, as well as to communications with third

parties “acting as agent” of the client. United States v.

Landof, 591 F.2d 36, 39 (9th Cir. 1978). “If the advice

sought is not legal advice, but, for example, accounting

advice from an accountant, then the privilege does not exist.”

Richey, 632 F.3d at 566 (citation omitted). Thus, we have

recognized several contexts in which communications with

attorneys for the purpose of non-legal advice are not

14 UNITED STATES V. SANMINA CORP.

privileged. 1 In general, however, “[i]f a person hires a

lawyer for advice, there is a rebuttable presumption that the

lawyer is hired ‘as such’ to give ‘legal advice,’ whether the

subject of the advice is criminal or civil, business, tort,

domestic relations, or anything else.” United States v. Chen,

99 F.3d 1495, 1501 (9th Cir. 1996). This “presumption is

rebutted when the facts show that the lawyer was ‘employed

without reference to his knowledge and discretion in the

law.’” Id.

There are “several ways by which parties may waive the

privilege.” In re Pac. Pictures Corp., 679 F.3d 1121, 1126

(9th Cir. 2012) (citations omitted). First, “voluntarily

disclosing privileged documents to third parties will

generally destroy the privilege.” Id. at 1126–27. Also

known as an “express waiver,” this type of waiver “occurs

when a party discloses privileged information to a third party

who is not bound by the privilege, or otherwise shows

disregard for the privilege by making the information

public.” Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir.

2003). “Disclosures that effect an express waiver are

typically within the full control of the party holding the

privilege; courts have no role in encouraging or forcing the

1

See, e.g., United States v. Rowe, 96 F.3d 1294, 1297 (9th Cir. 1996)

(noting “[w]here the attorney was asked for business (as opposed to

legal) counsel, no privilege attached,” but “fact-finding which pertains

to legal advice counts as ‘professional legal services’” (citations

omitted)); United States v. Huberts, 637 F.2d 630, 640 (9th Cir. 1980)

(“Generally, an attorney who serves as a business agent to a client may

not assert the attorney-client privilege, because no confidential

relationship attaches.”); see also Harris v. United States, 413 F.2d 316,

320 (9th Cir. 1969) (applying “the general rule that ministerial or clerical

services performed by an attorney are not within the privilege”).

UNITED STATES V. SANMINA CORP. 15

disclosure—they merely recognize the waiver after it has

occurred.” Id.

In contrast, waiver by implication, or implied waiver, is

based on the rule that “a litigant waives the attorney-client

privilege by putting the lawyer’s performance at issue during

the course of litigation.” Id. at 718; see also Weil, 647 F.2d

at 24 (“[T]he federal cases presuppose that waiver may be

effected by implication.”). Waivers by implication rest on

the “fairness principle,” which

is often expressed in terms of preventing a

party from using the privilege as both a shield

and a sword. . . . In practical terms, this

means that parties in litigation may not abuse

the privilege by asserting claims the opposing

party cannot adequately dispute unless it has

access to the privileged materials.

Bittaker, 331 F.3d at 719 (citation omitted).

This fairness principle also animates the concept of

subject matter waiver, in which “voluntary disclosure of the

content of a privileged attorney communication constitutes

waiver of the privilege as to all other such communications

on the same subject.” Weil, 647 F.2d at 24; see also Plache,

913 F.2d at 1380 (finding disclosure of a privileged

communication waived the privilege “on all other

communications on the same subject”). Under this rule,

“disclosure of information resulting in the waiver of the

attorney-client privilege constitutes waiver ‘only as to

communications about the matter actually disclosed.’”

Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th

Cir. 1992) (quoting Weil, 647 F.2d at 25)); see also

Mendelsohn, 896 F.2d at 1189 (affirming decision confining

testimony based on waiver to the subject of the waiver).

16 UNITED STATES V. SANMINA CORP.

B.

Whether Sanmina expressly waived the attorney-client

privilege over the Attorney Memos by voluntarily disclosing

them to DLA Piper turns chiefly on whether Sanmina shared

the memoranda with DLA Piper for the purpose of obtaining

legal advice. If Sanmina did not engage DLA Piper for its

legal services, as the district court found, then DLA Piper

was properly treated as a third party for the purposes of

attorney-client privilege, and Sanmina’s disclosure of the

memos to DLA Piper expressly waived the privilege. On the

other hand, if Sanmina shared the memoranda with DLA

Piper in order to secure legal advice, as Sanmina asserts, then

these privileged communications were maintained within a

confidential relationship between Sanmina and DLA Piper.

In finding that Sanmina disclosed the Attorney Memos

to DLA Piper for a non-legal purpose, the district court

reasonably relied on language from the DLA Piper Report

and Dulkie’s statement indicating that “Sanmina engaged

DLA Piper for the purpose of conducting a fair market value

analysis to be used for tax compliance reasons” and “sought

DLA Piper’s services in producing the valuation report.”

These same evidentiary sources, however, also provide

inferential support for Sanmina’s claim that it engaged DLA

Piper as outside tax counsel and shared the privileged

memoranda for the purpose of obtaining DLA Piper’s legal

advice. For instance, Dulkie’s statement that “Sanmina

sought advice from DLA Piper . . . concerning the propriety

of the [tax] deduction” after “[a]nticipating that the [IRS]

might adopt an adverse position” could reasonably support

the conclusion that the advice Sanmina sought from DLA

Piper regarding the propriety of its tax deduction was legal

UNITED STATES V. SANMINA CORP. 17

in nature. 2 The DLA Piper Report also provides some

indications of an attorney-client relationship, or at least an

expectation of attorney-client confidentiality, between DLA

Piper and Sanmina. 3

Viewed in its entirety, the record might suggest that

Sanmina shared the Attorney Memos with DLA Piper for the

purpose of seeking both legal and non-legal advice

pertaining to the propriety of its tax deduction.

Communications made for such a “dual purpose” are not

uncommon in the tax law context, where an attorney’s

advice may integrally involve both legal and non-legal

analyses. 4 While our court has not yet addressed how to

2

While Dulkie does not explicitly describe the advice sought as

“legal,” such an inference would not be unreasonable given the

undisputed fact that DLA Piper is a law firm, which comes with a

“rebuttable presumption” that the firm was engaged for its legal

knowledge. See Chen, 99 F.3d at 1502 (stating that where “attorneys

were employed for their legal knowledge, to bring their clients into

compliance with the law . . . [t]heir communications with their clients

were . . . within the scope of the attorney-client privilege”).

3

For instance, the cover letter of the DLA Piper Report was

addressed to Sanmina’s in-house counsel and stated that DLA Piper had

conducted a valuation analysis “supporting your assessment of

insolvency of Sanmina International AG,” which could be interpreted as

evidence that Sanmina engaged DLA Piper to review and verify its in-

house legal analysis on the insolvency of its subsidiary and its potential

tax implications. The report was also signed, in part, by a firm attorney

and contains “attorney-client privilege” warnings on each page, which

could indicate an understanding between DLA Piper and Sanmina that

its shared documents and communications were covered by attorney-

client confidentiality.

4

See 1 Paul R. Rice, Attorney-Client Privilege in the United States

§ 7:4 (2019) (“In a broad range of areas (e.g., tax, commercial, patent,

criminal, or litigation and its avoidance), ‘legal’ assistance often involves

18 UNITED STATES V. SANMINA CORP.

assess when a “dual purpose” communication remains

within the privilege, we recognize that district courts in our

circuit have grappled with this question and differed in

regard to the proper test to apply. 5 Notwithstanding this

intra-circuit split, however, we need not decide the issue on

the facts of this case. Despite some evidence that Sanmina

may have had a “dual purpose” for sharing the Attorney

Memos to DLA Piper, the district court’s finding that

Sanmina’s purpose was to obtain a non-legal valuation

many non-legal, complementary services.”); United States v. Cote,

456 F.2d 142, 144 (8th Cir. 1972) (holding that an accountant’s work

papers used by the attorney in advising client were privileged where the

attorney’s “decision as to whether the taxpayers should file an amended

return undoubtedly involved legal considerations which mathematical

calculations alone would not provide” and “the accountant’s aid to the

lawyer preceded the advice and was an integral part of it.”); In re Grand

Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1037

(2d Cir. 1984) (“Tax advice rendered by an attorney is legal advice

within the ambit of the privilege.”).

5

Some district courts have applied a “primary purpose” test. See,

e.g., Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 628 (D. Nev. 2013);

U.S. v. Salyer, 853 F. Supp. 2d 1014, 1018 (E.D. Cal. 2012); Premiere

Digital Access, Inc. v. Central Telephone Co., 360 F. Supp. 2d 1168,

1174 (D. Nev. 2005); United States v. ChevronTexaco Corp., 241 F.

Supp. 2d 1065, 1076 (N.D. Cal. 2002). Other courts have transported

the “because of” test from the work-product context, and looked to “the

totality of the circumstances” to determine “the extent to which the

communication solicits or provides legal advice or functions to facilitate

the solicitation or provision of legal advice.” See In re CV Therapeutics,

Inc. Sec. Litig., No. C-03-3709 SI(EMC), 2006 WL 1699536, at *3–4

(N.D. Cal. June 16, 2006); Visa U.S.A., Inc. v. First Data Corp., No. C-

02-1786JSW(EMC), 2004 WL 1878209, at *4 (N.D. Cal. Aug. 23, 2004)

(“The Court discerns no reason why . . . for purposes of determining the

discoverability of documents that have both a legal purpose and a

nonlegal purpose (e.g., business purpose), the [“because of”]

methodology in In re Grand Jury Subpoena[, 357 F.3d 900 (9th Cir.

2004),] should not be applied to the attorney-client privilege.”).

UNITED STATES V. SANMINA CORP. 19

analysis from DLA Piper, rather than legal advice, was not

clearly erroneous because it was not “illogical, implausible,

or without support in the record.” Graf, 610 F.3d at 1157.

Because its factual findings do not rise to clear error, we

affirm the district court’s conclusion that Sanmina expressly

waived attorney-client privilege over the Attorney Memos

when it disclosed the memos to DLA Piper.

Given our conclusion that Sanmina expressly waived

attorney-client privilege over the Attorney Memos when

they were disclosed to DLA Piper, we need not reach

whether Sanmina also waived the privilege when it provided

the DLA Piper Report to the IRS based on the fairness

principle. But our inquiry is not over. Because we agree

with the district court that the Attorney Memos constituted

both privileged attorney-client communications as well as

protected work product, we turn next to whether Sanmina

also waived work-product protection over the memoranda.

IV.

A.

The work-product doctrine is a “qualified” privilege that

protects “from discovery documents and tangible things

prepared by a party or his representative in anticipation of

litigation.” Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486,

1494 (9th Cir. 1989) (citing Fed. R. Civ. P. 26(b)(3)); see

also United States v. Nobles, 422 U.S. 225, 237–38 (1975).

“At its core, the work-product doctrine shelters the mental

processes of the attorney, providing a privileged area within

which he can analyze and prepare his client’s case,” and

protects both “material prepared by agents for the attorney

as well as those prepared by the attorney himself.” Nobles,

422 U.S. at 238–39. The primary purpose of the work-

20 UNITED STATES V. SANMINA CORP.

product rule is to “prevent exploitation of a party’s efforts in

preparing for litigation.” Admiral Ins. Co., 881 F.2d at 1494.

“The privilege derived from the work-product doctrine

is not absolute. Like other qualified privileges, it may be

waived.” Nobles, 422 U.S. at 239. Similar to the waiver of

the attorney-client privilege, a litigant can waive work-

product protection to the extent that he reveals or places the

work product at issue during the course of litigation. For

instance, in Nobles, a criminal defendant’s decision to

present his defense investigator as a witness waived work-

product privilege over the investigator’s report “with respect

to matters covered in his testimony.” Id. at 236, 239.

Similarly, in Hernandez v. Tanninen, 604 F.3d 1095, 1100

(9th Cir. 2010), a party’s production of an attorney’s notes

in support of his opposition to a motion constituted a waiver

of work-product privilege over the subject matter of the

notes disclosed.

Both parties posit that, unlike waivers by disclosure in

the attorney-client privilege context, waivers of work-

product protection require disclosing the work product to an

adversary, and not merely to a third party. While the parties

do not provide us a controlling decision for this proposition,

we have nonetheless recognized that “there is an important

distinction between the rules governing when each type of

protection has been waived.” Transamerica Computer Co.,

Inc. v. Int’l Bus. Machines Corp., 573 F.2d 646, 647 n.1 (9th

Cir. 1978). Although we did not further elaborate on this

“important distinction” in Transamerica Computer, 6 we

6

We found the distinction between the two types of waiver

“unimportant” in Transamerica Computer because there, “the third

person to whom the disclosure was made, a disclosure supposedly

UNITED STATES V. SANMINA CORP. 21

cited a number of authorities expressing the principle that

waiver of attorney-client privilege by disclosure to a third

party “does not necessarily affect the work product

protection since the two are designed to accomplish different

results.” Ceco Steel Prod. Corp. v. H. K. Porter Co., 31

F.R.D. 142, 143 (N.D. Ill. 1962); see also Vilastor-Kent

Theatre Corp. v. Brandt, 19 F.R.D. 522, 524 (S.D.N.Y.

1956)).

Since our decision in Transamerica, courts appear to

have reached a general “uniformity in implying that work-

product protection is not as easily waived as the attorney-

client privilege” based on the distinct purposes of the two

privileges. United States v. Mass. Inst. of Tech., 129 F.3d

681, 687 (1st Cir. 1997). While the attorney-client privilege

“is designed to protect confidentiality, so that any disclosure

outside the magic circle is inconsistent with the privilege,”

work-product protection “is provided against ‘adversaries,’

so only disclosing material in a way inconsistent with

keeping it from an adversary waives work product

protection.” Id.; see also United States v. Deloitte LLP,

610 F.3d 129, 140 (D.C. Cir. 2010) (“Voluntary disclosure

waives the attorney-client privilege because it is inconsistent

with the confidential attorney-client relationship. Voluntary

disclosure does not necessarily waive work-product

protection, however, because it does not necessarily

undercut the adversary process.”). Accordingly, the

overwhelming majority of our sister circuits have espoused

or acknowledged the general principle that the voluntary

disclosure of work product waives the protection only when

such disclosure is made to an adversary or is otherwise

inconsistent with the purpose of work-product doctrine—to

resulting in a waiver, was IBM’s adversary in litigation.” 573 F.2d

at 647 n.1.

22 UNITED STATES V. SANMINA CORP.

protect the adversarial process. 7 District courts in our circuit

have also applied the same principle. 8

7

See, e.g., Mass. Inst. of Tech., 129 F.3d at 687 (“[O]nly disclosing

material in a way inconsistent with keeping it from an adversary waives

work product protection.”); In re Steinhardt Partners, L.P., 9 F.3d 230,

235 (2d Cir. 1993) (“[V]oluntary disclosure of work product to an

adversary waives the privilege as to other parties.”); In re Chevron

Corp., 633 F.3d 153, 165 (3rd Cir. 2011) (“[I]t is only in cases in which

the material is disclosed in a manner inconsistent with keeping it from

an adversary that the work-product doctrine is waived.”); Ecuadorian

Plaintiffs v. Chevron Corp., 619 F.3d 373, 378 (5th Cir. 2010)

(“Although work product immunity is not automatically waived by

disclosure of protected material to third parties, disclosure does waive

protection if it ‘has substantially increased the opportunities for potential

adversaries to obtain the information.’” (citation omitted)); In re

Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289,

306 (6th Cir. 2002) (“Other than the fact that the initial waiver must be

to an ‘adversary,’ there is no compelling reason for differentiating waiver

of work product from waiver of attorney-client privilege.” (footnote

omitted)); In re Chrysler Motors Corp. Overnight Evaluation Program

Litig., 860 F.2d 844, 846 (8th Cir. 1988) (“Disclosure to an adversary

waives the work product protection as to items actually disclosed . . . .”

(internal quotation marks and citation omitted)); Doe No. 1 v. United

States, 749 F.3d 999, 1008 (11th Cir. 2014) (“Disclosure of work-

product materials to an adversary waives the work-product privilege.”);

United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir.

1980) (“[D]isclosure to a third party does not waive the privilege ‘unless

such disclosure, under the circumstances, is inconsistent with the

maintenance of secrecy from the disclosing party's adversary.’”); Carter

v. Gibbs, 909 F.2d 1450, 1451 (Fed. Cir. 1990) (“Voluntary disclosure

of attorney work product to an adversary in the litigation for which the

attorney produced that information defeats the policy underlying the

privilege . . . .”).

8

See, e.g., Samuels v. Mitchell, 155 F.R.D. 195, 200 (N.D. Cal.

1994) (“[T]he work product privilege is not automatically waived by any

disclosure to third persons. Rather, the courts generally find a waiver

only if the disclosure ‘substantially increases the opportunity for

UNITED STATES V. SANMINA CORP. 23

Thus, consistent with our sister circuits as well as

precedent on the unique purposes for the work-product

doctrine, we hold that disclosure of work product to a third

party does not waive the protection unless such disclosure is

made to an adversary in litigation or “has substantially

increased the opportunities for potential adversaries to

obtain the information.” 8 Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure § 2024 (3d ed. 2020).

Put another way, disclosing work product to a third party

may waive the protection where “such disclosure, under the

circumstances, is inconsistent with the maintenance of

secrecy from the disclosing party’s adversary.” Rockwell

Int’l Corp. v. U.S. Dep’t of Justice, 235 F.3d 598, 605 (D.C.

Cir. 2001) (internal quotation marks and citation omitted).

“Under this standard, the voluntary disclosure of attorney

work product to an adversary or a conduit to an adversary

waives work-product protection for that material.” Deloitte,

610 F.3d at 140.

In Deloitte, the D.C. Circuit applied this standard in the

context of a federal tax case, where the government also

sought production of work product that the taxpayer

company, Dow, had disclosed to its independent auditor,

Deloitte. 610 F.3d at 133. There, the government argued

that Dow’s disclosure of its attorney work product to

Deloitte waived the protection because Deloitte was either a

potential adversary or a conduit to an adversary. Id. at 140–

41. In rejecting both arguments, the D.C. Circuit provided

some useful guidance on how to determine whether

disclosure to an adversary, or a conduit to an adversary, has

occurred.

potential adversaries to obtain the information.’” (citation and quotation

omitted)).

24 UNITED STATES V. SANMINA CORP.

Addressing whether Deloitte was a “potential adversary”

to Dow, the D.C. Circuit framed the relevant question as “not

whether Deloitte could be Dow’s adversary in any

conceivable future litigation, but whether Deloitte could be

Dow’s adversary in the sort of litigation the [work-product

documents] address.” Id. at 140. In concluding “that the

answer must be no,” the court noted that, in preparing the

work product, “Dow anticipated a dispute with the IRS, not

a dispute with Deloitte,” and the work product concerned tax

implications that “would not likely be relevant in any dispute

Dow might have with Deloitte.” Id.

As to the “conduit to an adversary” analysis, the D.C.

Circuit noted that its prior applications of the “maintenance

of secrecy” standard have generally involved “two discrete

inquiries in assessing whether disclosure constitutes

waiver.” Id. at 141. The first inquiry is “whether the

disclosing party has engaged in self-interested selective

disclosure by revealing its work product to some adversaries

but not to others.” Id. If so, “[s]uch conduct militates in

favor of waiver” based on fairness concerns. Id. The second

inquiry is “whether the disclosing party had a reasonable

basis for believing that the recipient would keep the

disclosed material confidential.” Id. This “reasonable

expectation of confidentiality” could “derive from common

litigation interests between the disclosing party and the

recipient,” or it “may be rooted in a confidentiality

agreement or similar arrangement between the disclosing

party and the recipient.” Id.

These points of inquiry into the disclosing party’s

“selective disclosure” and “reasonable expectation of

confidentiality”—while highly relevant and often

dispositive—are not the only considerations at play in

assessing whether a work-product disclosure is inconsistent

UNITED STATES V. SANMINA CORP. 25

with the maintenance of secrecy against adversaries. Rather,

the fact-intensive analysis requires a consideration of the

totality of the circumstances and is ultimately guided by the

same principle of fundamental fairness that underlies much

of our common law doctrine on waiver by implication.

Thus, we may find the work-product immunity waived

where the disclosing party’s conduct has reached a “certain

point of disclosure” towards his adversary such that “fairness

requires that his privilege shall cease, whether he intended

that result or not.” Weil, 647 F.2d at 24. Under the fairness

doctrine however, a court must be careful to “impose a

waiver no broader than needed to ensure the fairness of the

proceedings before it. Because a waiver is required so as to

be fair to the opposing side, the rationale only supports a

waiver broad enough to serve that purpose.” Bittaker,

331 F.3d at 720.

In light of these relevant guideposts, we turn to whether

Sanmina voluntarily disclosed the Attorney Memos “to an

adversary or a conduit to an adversary” either when it

disclosed the Attorney Memos to DLA Piper or when it

provided the DLA Piper Report to the IRS.

B.

The question of whether Sanmina’s disclosure of the

Attorney Memos to DLA Piper alone qualifies as a

“disclosure to an adversary” is fairly easy to answer. We

conclude it does not. The government readily concedes that

DLA Piper was not an adversary to Sanmina. Nor was DLA

Piper a potential adversary. As Deloitte and other courts

have held, a taxpayer’s disclosure of its attorney work

product to an independent auditor does not constitute

disclosure to an adversary sufficient to waive the protection.

See Deloitte, 610 F.3d at 139 (“Among the district courts that

have addressed this issue, most have found no waiver.”)

26 UNITED STATES V. SANMINA CORP.

(citing cases). In that same vein, Sanmina’s disclosure of the

Attorney Memos to DLA Piper for the purpose of obtaining

a valuation analysis may render DLA Piper a third party

insofar as attorney-client privilege is concerned, but it does

not transform DLA Piper into an adversary or even a

potential adversary with respect to the memoranda. Similar

to the work product at issue in Deloitte, the Attorney Memos

were prepared in anticipation of a dispute between Sanmina

and the IRS, not between Sanmina and DLA Piper, and they

involve legal assessments of potential tax implications for

Sanmina, which would likely be irrelevant in any potential

dispute between Sanmina and DLA Piper. Id. at 140.

The government argues that DLA Piper was nonetheless

a “conduit to an adversary” because the DLA Piper Report

“was intended for disclosure to interested tax authorities”

and any “expectation of confidentiality was therefore

absent.” The relevant inquiry, however, is not whether

Sanmina expected confidentiality over the DLA Piper

Report. It is whether Sanmina “had a reasonable basis for

believing that [DLA Piper] would keep the [Attorney

Memos] confidential” in the process of producing its

valuation analysis. Deloitte, 610 F.3d at 141. That Sanmina

shared the Attorney Memos with DLA Piper to obtain a

valuation report for the IRS does not necessarily mean that

Sanmina knew or should have known that the resulting DLA

Piper Report would disclose or make reference to its attorney

work product. If anything, Sanmina’s enlistment of DLA

Piper’s assistance in anticipation of litigation with the IRS

indicates a “common litigation interest” between Sanmina

and DLA Piper insofar as the Attorney Memos are

concerned. Id. at 142. Furthermore, as discussed earlier,

some facts in the record support a reasonable belief on

Sanmina’s part that the Attorney Memos were maintained

within a confidential relationship with DLA Piper. See

UNITED STATES V. SANMINA CORP. 27

supra note 3. On balance, the circumstances suggest that

Sanmina had a reasonable expectation of confidentiality

over the Attorney Memos at the time of their disclosure to

DLA Piper.

There is also no indication that Sanmina was engaging in

“self-interested selective disclosure” when it provided the

memoranda to DLA Piper. Id. at 141. “Selective disclosure

involves disclosing work product to at least one adversary.”

Id. at 142. As we have already found and the government

concedes, DLA Piper was not an adversary to Sanmina when

it received the Attorney Memos, nor were any of the other

entities in receipt of the memoranda. Accordingly, we

conclude that Sanmina’s disclosure of the Attorney Memos

to DLA Piper did not constitute a disclosure to an adversary

or a conduit to an adversary sufficient to waive the work-

product privilege.

C.

Although Sanmina’s disclosure of the Attorney Memos

to DLA Piper in itself did not waive work-product

protection, the more difficult question is whether Sanmina

waived such protection when it provided the IRS with the

DLA Piper Report. Under the “disclosure to an adversary”

standard, there is no dispute that the IRS is an adversary to

Sanmina insofar as the Attorney Memos are concerned.

However, Sanmina did not disclose the actual Attorney

Memos to the IRS; rather, it disclosed a valuation report that

cited to the protected memoranda. Sanmina argues that

because the DLA Piper Report did “not disclose or describe

the contents of the Attorney Memos,” there is no

“disclosure” sufficient to waive the memoranda’s work-

product protection.

28 UNITED STATES V. SANMINA CORP.

The concept that waiver by disclosure requires the

disclosure of some “content” of a privileged document—or

at least more than the fact of its existence—makes intuitive

sense. It also finds support from case law. 9 This point,

however, is not wholly dispositive to our waiver analysis.

As we have recognized in the attorney-client privilege

context, there is a difference between express and implied

waivers. This framework is also applicable in the context of

work-product protection, where an express waiver generally

occurs by disclosure to an adversary, while an implied

waiver occurs by disclosure or conduct that is inconsistent

with the maintenance of secrecy against an adversary. See

In re Martin Marietta Corp., 856 F.2d 619, 625–26 (4th Cir.

1988) (finding a regulatory disclosure of work product

“impliedly waived the work product privilege as to all non-

opinion work product on the same subject matter as that

disclosed” but not to opinion work product). Sanmina’s

claim that the DLA Piper Report does not disclose any of the

content of the Attorney Memos to the IRS may foreclose a

finding of express waiver in this case, but it is only one factor

9

“The case law is well settled that disclosing the fact that there were

confidential communications between a client and his or her attorney—

or even disclosing that certain subjects confidentially were discussed

between a client and his or her attorney—does not constitute a waiver by

partial disclosure.” Roberts v. Legacy Meridian Park Hosp., Inc., 97 F.

Supp. 3d 1245, 1253 (D. Or. 2015). “The disclosure must be of

confidential portions of the privileged communications. This does not

include the fact of the communication, the identity of the attorney, the

subject discussed, and details of the meetings, which are not protected

by the privilege.” Id. (citing 2 Paul R. Rice, Attorney-Client Privilege in

the United States § 9:30 at 153–56 (2014)). This proposition also finds

inferential support from the statement in Weil that “voluntary disclosure

of the content of a privileged attorney communication” constitutes

subject matter waiver. 647 F.2d at 24 (emphasis added).

UNITED STATES V. SANMINA CORP. 29

we consider in determining whether to find an implied

waiver.

Thus, the focal point of our waiver inquiry is whether,

under the totality of the circumstances, Sanmina acted in

such a way that is inconsistent with the maintenance of

secrecy against its adversary in regard to the Attorney

Memos. More broadly, we must ask whether and to what

extent fairness mandates the disclosure of the Attorney

Memos in this case. While we are generally guided by the

same fairness principle underlying waivers by implication in

the attorney-client privilege context, the overriding concern

in the work-product context is not the confidentiality of a

communication, but the protection of the adversary process.

Here, Sanmina obtained a valuation report from DLA

Piper in anticipation of scrutiny from the IRS over a claimed

tax deduction. When asked for proof from the IRS, Sanmina

responded with the DLA Piper Report—a document that

expressly referred to the Attorney Memos. Presumably,

Sanmina could have chosen to substantiate the deduction

with other documents that did not make reference to the

Attorney Memos but did not. Such conduct seems

inconsistent with Sanmina’s purported goal of keeping the

memoranda secret from the IRS. Assuming that Sanmina

reasonably expected confidentiality over the Attorney

Memos when sharing them with DLA Piper, this expectation

became far less reasonable once Sanmina decided to disclose

to the IRS a valuation report that explicitly cited the

memoranda as a basis for its conclusions. In doing so,

Sanmina increased the possibility that the IRS, its adversary

in this matter, might obtain its protected work product, and

thereby engaged in conduct inconsistent with the purposes

of the privilege.

30 UNITED STATES V. SANMINA CORP.

To the extent that Sanmina implicitly waived the work-

product privilege, the scope of its waiver must be “closely

tailored . . . to the needs of the opposing party” and limited

to what is necessary to rectify any unfair advantage gained

by Sanmina from its conduct. Bittaker, 331 F.3d at 720. In

that regard, it is not clear what unfair advantage Sanmina has

gained from its conduct, or how the IRS has been unfairly

disadvantaged, particularly at the current stage of

proceedings. The dispute before us is whether to enforce a

petition for a summons in a tax audit initiated by the IRS.

The parties have not yet engaged in any formal litigation

regarding the underlying validity of Sanmina’s claimed tax

deduction. Even if Sanmina may have temporarily reaped

the benefit of its claimed tax deduction, the potential

consequences of Sanmina’s decision to withhold the

Attorney Memos and support the deduction with a

questionable valuation report ultimately bear more heavily

on Sanmina than on the IRS. We disagree with the district

court’s conclusion that, without the disclosure of the

Attorney Memos, “the IRS or any other reader would be

forced to simply accept the [DLA Piper] opinion without

access to the foundational material.” At this audit stage, the

IRS is not required to accept the conclusions in the DLA

Piper Report at all. Even without access to the Attorney

Memos, the IRS could still proceed with its examination of

Sanmina’s returns, conclude that Sanmina has failed to

adequately support its claimed deduction with the DLA

Piper Report and other documents provided, and disallow

the deduction. See Interstate Transit Lines v. Comm’r of

Internal Revenue, 319 U.S. 590, 593 (1943) (stating “the

now familiar rule that an income tax deduction is a matter of

legislative grace and that the burden of clearly showing the

right to the claimed deduction is on the taxpayer”). So long

as Sanmina continues to refuse to produce the Attorney

UNITED STATES V. SANMINA CORP. 31

Memos, it faces the likely risk of an unfavorable decision

from the IRS in regard to its tax deduction.

The Attorney Memos, as described by Sanmina’s in-

house counsel and confirmed by the district court’s review,

contain both factual discussions of the relevant transactions

and legal analyses of these facts in light of various tax law

authorities. Thus, the memoranda contain both factual work

product and opinion work product. Based on Sanmina’s

overall conduct, Sanmina has implicitly waived protection

over any factual or non-opinion work product in the

Attorney Memos that serve as foundational material for the

DLA Piper Report. However, the IRS provides no reason

why the scope of this implied waiver should encompass the

opinion work product contained in the Attorney Memos.

Besides its general argument the Attorney Memos are

needed to understand the DLA Piper Report, the IRS does

not explain why the “mental impressions, conclusions,

opinions or legal theories” of Sanmina’s in-house attorneys

are specifically at issue or critical to its assessment of the

deduction’s legal validity. Hickman v. Taylor, 329 U.S. 495,

508 (1947). We have held that such opinion work product

is discoverable only “when mental impressions are at issue

in a case and the need for the material is compelling.”

Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573,

577 (9th Cir. 1992); see also Upjohn Co. v. United States,

449 U.S. 383, 401 (1981) (“[S]uch work product cannot be

disclosed simply on a showing of substantial need and

inability to obtain the equivalent without undue hardship.”).

According to Sanmina, it has produced to the IRS both

the DLA Piper Report as well as the underlying transactional

documents on which the Attorney Memos and the DLA

Piper Report relied. These disclosures, along with our

ordered disclosure of the factual work product contained in

32 UNITED STATES V. SANMINA CORP.

the Attorney Memos, should provide the IRS with the same

underlying facts and data on which Sanmina’s attorneys

relied in generating the legal opinions contained in the

Attorney Memos. With this information, the IRS should be

able to rely on its own attorneys to analyze the relevant facts

in light of the applicable tax authorities to determine the

legal validity of Sanmina’s tax deduction. While it might

certainly be helpful to the IRS to have access to the entirety

of the memoranda, this reason does not justify the IRS’s

entitlement to the legal theories and opinions of its potential

adversary in litigation. In fact, mandating full disclosure of

such protected work product under these circumstances may

potentially undermine the adversary process by allowing the

IRS the opportunity to litigate “on wits borrowed from the

adversary” in a future legal dispute with Sanmina. Hickman,

329 U.S. at 516 (Jackson, J., concurring).

We conclude that fairness does not require the

categorical disclosure of Sanmina’s protected work product

to the IRS at this stage of prelitigation. Rather, fairness

requires, at most, the disclosure of the factual, or non-

opinion, work product contained in the Attorney Memos

upon which the DLA Piper Report relies. Any opinion work

product—meaning, the attorney’s “mental impressions,

conclusions, opinions or legal theories”—contained in the

Attorney Memos shall remain protected by the work-product

doctrine.

V.

Sanmina waived the attorney-client privilege when it

disclosed the Attorney Memos to DLA Piper. However,

such disclosure did not automatically waive work-product

protection over the Attorney Memos. Rather, waiver of

work-product immunity requires either disclosure to an

adversary or conduct that is inconsistent with the

UNITED STATES V. SANMINA CORP. 33

maintenance of secrecy against its adversary. Under this

standard, Sanmina did not expressly waive work-product

immunity merely by providing the Attorney Memos to DLA

Piper, but its subsequent use of the DLA Piper Report to

support its tax deduction in an audit by the IRS was

inconsistent with the maintenance of secrecy against its

adversary. In imposing an implied waiver of the work-

product privilege in this case, we conclude that the fairness

principle does not require the categorical disclosure of the

Attorney Memos at this stage. Rather, Sanmina’s implied

waiver of the work-product protection only extends to the

factual portions of the Attorney Memos.

Thus, we GRANT IN PART and DENY IN PART the

IRS’s petition to enforce its summons. We order disclosure

of only the factual content of the Attorney Memos on which

the DLA Piper Report relies. We remand to the district court

for the limited purpose of determining the specific portions

of the Attorney Memos that should be disclosed to the IRS

and ordering disclosure consistent with this opinion.