A corporation’s voluntary disclosure to a government agency of confidential attorney work product or privileged communications will, absent extraordinary circumstances, result in a waiver of the protections of the attorney-client privilege and the work product doctrine, and render the disclosed information discoverable in subsequent litigation with third parties. That is the finding of a recent decision by the United States District Court for the Southern District of New York. In In Re Initial Public Offering Securities Litigation, 2008 WL 400933 (S.D.N.Y. Feb. 14, 2008) (IPO Litigation), the court considered, but largely rejected, the “selective waiver doctrine.” Under the selective waiver doctrine, a few courts had previously held that a party that voluntarily discloses protected documents or information to governmental agencies should not lose the protection of the work product doctrine or the attorney-client privilege in subsequent litigation with third parties.
IPO Litigation is a class action securities fraud case. At issue were documents that a defendant in the case, Credit Suisse, had earlier turned over to government investigators. In response to allegations of impropriety in the allocation of IPO shares, Credit Suisse had hired outside counsel to conduct an investigation of the company’s practices. Outside counsel interviewed Credit Suisse employees and prepared memoranda memorializing those interviews. Credit Suisse then voluntarily produced those memoranda to the Securities and Exchange Commission and federal prosecutors. Those governmental actors promised to maintain the confidentiality of the memoranda.
