Avoiding Privilege and Work-Product Waiver

Reprinted with permission from the publisher.

Having work product or attorney-client communications from an internal investigation of corporate wrongdoing used against your corporate client by private litigants is always unpleasant and can also deliver a body blow to your case. Waiver is usually the culprit— resulting not from inadequate compliance with civil discovery rules or the use of the material to refresh a witness’ memory, but instead from the material’s use by a special litigation committee of a board of directors in shareholder derivative litigation, or from the material’s “voluntary” disclosure to a governmental agency investigating the wrongdoing.