When Is Work Product Waived? (Best Practices to Prevent Waiver) 

The work product doctrine is a cornerstone of legal practice, safeguarding materials prepared in anticipation of litigation from disclosure to adversaries. However, this protection is not absolute. Recent court decisions have illuminated circumstances under which work product protection can be waived, either inadvertently or intentionally. Understanding these nuances is crucial for legal practitioners aiming to maintain confidentiality and strategic advantage. Implementing proactive measures to prevent waiver, such as controlled disclosure and careful documentation, is essential in preserving the integrity of work product protection.

Inadvertent Waiver

Inadvertent disclosure of protected materials can lead to a waiver of work product protection. Courts typically assess such situations using a multi-factor test, considering:

1. Reasonableness of Precautions: Were adequate measures taken to prevent accidental disclosure?
2. Time Taken to Rectify: How promptly did the disclosing party act to address the error?
3. Scope of Disclosure: How extensive was the disclosure?
4. Fairness: Would maintaining the privilege be unfair to the opposing party?

For instance, in La Liberte v. Reid, a defamation case in the Eastern District of New York, the court examined whether certain communications were protected under the work product doctrine and if any exceptions, such as the crime-fraud exception, applied. This case underscores the importance of carefully managing privileged communications to prevent inadvertent waiver.

Intentional Waiver

Intentional disclosure of work product to third parties can also result in waiver, particularly if the disclosure is to an adversary or substantially increases the likelihood that an adversary will obtain the information. However, the doctrine of selective waiver allows a party to disclose work product to certain entities, like government agencies, without waiving protection against other parties. The acceptance of this doctrine varies among jurisdictions.

A notable case is In re Imerys Talc America, Inc., where the U.S. Bankruptcy Court for the District of Delaware addressed issues related to common-interest and attorney work-product protections. The court’s decisions in this case provide guidance on how parties can share information without waiving work product protection, emphasizing the importance of a clear common legal interest among the parties involved.

Best Practices to Preserve Work Product Protection

To mitigate the risk of waiving work product protection, legal practitioners should consider the following strategies:

• Implement Robust Document Management: Establish and enforce protocols to prevent inadvertent disclosure, such as thorough review processes and secure communication channels. Make sure team members have experience determining when documents are protected by the work product doctrine.  
• Act Swiftly Upon Discovery of Disclosure: If an inadvertent disclosure occurs, promptly notify the opposing party and seek to retrieve or sequester the disclosed materials.
• Limit Voluntary Disclosures: Be cautious when sharing work product with third parties. Ensure that any disclosure aligns with the common-interest doctrine and is accompanied by agreements that stipulate confidentiality and non-waiver of protections.
• Stay Informed of Jurisdictional Variances: Recognize that the acceptance of doctrines like selective waiver varies across jurisdictions. Tailor your approach to align with the prevailing standards in the relevant legal venue.

While the work product doctrine offers essential protection for materials prepared in anticipation of litigation, it is subject to waiver under certain conditions. Baer Reed’s team of document review attorneys has 10+ years of experience implementing best practices to protect privileged communications and attorney work product.  For more information on our privilege review services, contact Baer Reed today.