explaining that, while “selective disclosure” can be consistent with the purposes of the work- product privilege, “at some point acceptable tactics may degenerate into sharp practices inimical to a healthy adversary system”
How later courts described this case
- explaining that, while “selective disclosure” can be consistent with the purposes of the work- product privilege, “at some point acceptable tactics may degenerate into sharp practices inimical to a healthy adversary system”
- stating that the work product privilege protects any material obtained or prepared by a lawyer “in the course of his legal duties, provided that the work was done with an eye toward litigation.”
- discussing the purposes of the attorney-client and work-product privileges, and recognizing that “both have the same basic purpose: to promote broad public interests in the observance of law and the administration of justice” (alterations and internal quotation marks omitted)
- stating that “any voluntary disclosure by the client to a third party breaches the confidentiality of the attorney-client relationship and therefore waives the privilege”
Written by the judges who cited it.
The opinion
WALD, Circuit Judge,
concurring:
I concur in Parts I, II, IV and V of Judge Wright’s opinion as they relate to documents 2 and 3. Within the context of the SEC’s voluntary disclosure program, it would be inequitable to allow a corporation to foster the appearance of full disclosure, and later withhold records that are properly characterized as underlying documents of its report to the SEC. Documents 2 and 3 clearly fall within this category of underlying documents. Under the ground rules set up by appellant (“Company”), outside counsel was authorized to interview in-house counsel. In this interview, in-house counsel recounted discussions with top Company officials that are described in documents 2 and 3, and expressly agreed (in accordance with standard procedures) to hand over files relating to these discussions. Having relied on the appearance that all relevant documents were available to both outside counsel and SEC investigators, Company cannot now hide behind a cloak of privilege.