Work Product Woes

Blawgletter got some excellent feedback about our last post -- on the D.C. Circuit's ruling this week that the lawyer work product doctrine protects a third-party auditor's memo to the extent it reports ideas that a lawyer birthed in anticipation of a lawsuit.

We doubted the court got it right.  At least one of you agreed with us.  But at least another one surely did not.  This elite member of the Blawgletterati wrote:

The circumstances for waiver of work product are and should be different from waiver of the attorney-client privilege.  Because the underlying purpose of the work product doctrine is to protect attorney work product from disclosure to adversaries, waiver of work product results only where the information is disclosed to an adversary or under circumstances that substantially increase the opportunity for an adversary to obtain the information, not just where it is disclosed to any third party.  See, e.g., SEC v. Brady, 238 F.R.D. 429, 444 (N.D. Tex. 2006).  Thus, waiver of the attorney-client privilege in a particular communication does not necessarily mean that the work product protection in the same communication has been waived.  Id. at 441.  In the [D.C. Circuit's] Deloitte case, the attorney’s work product was shared with the client’s auditor, which ordinarily should not be a circumstance that substantially increases the opportunity for the IRS to obtain the information.  If an outside lawyer cannot share his thoughts with the client’s auditors without fear of waiving work product, a client’s defense is hampered.

That sounds mighty persuasive.  Yet we still feel queasy about setting different tests for waiver of lawyer-client privilege and lawyer work product.  Seems to us that the communication of work product ideas to the third-party should at least serve the purpose of the work product doctrine -- aiding the prosecution or defense of a lawsuit.  In Deloitte, the disclosure of work product helped the audit but not defense of the tax case.

We bet many of you have Powerful Opinions about this Important Subject.  What do you think?