The opinion of the court was delivered by: STANTON
Plaintiff asserts attorney work-product protection for its submissions to various governmental agencies (the United States Department of Justice, Antitrust Division, the Canadian Competition Tribunal and the European Commission) in its efforts to foster action by those antitrust authorities against the defendants in this private treble-damage lawsuit.
Assuming the materials were attorney work-product, the protection was waived.
While the decisions in the law involving waiver by production to governmental authorities with an expectation they will not be revealed to the producing party's adversary are fact-intensive and not entirely consistent, they fall roughly into three categories.
Cases in the first category find no waiver in production of the work-product to an existing ally in litigation, applying the concept of the "joint defense" privilege articulated in Stix Products, Inc. v. United Merchants & Mfrs., Inc., 47 F.R.D. 334 (S.D.N.Y. 1969) (no waiver by customer's disclosure of its legal opinion on patent to plaintiff charged with its infringement, in view of plaintiff's and customer's common interest); Stanley Works v. Haeger Potteries, Inc., 35 F.R.D. 551, 555 (D. Ill 1964) (exchange by "attorneys for parties having a mutual interest in litigation" remains protected); Transmirra Prods. Corp. v. Monsanto Chem. Co., 26 F.R.D. 572 (S.D.N.Y. 1960) (same, collecting cases).
The principle applies between private parties and the government. See, e.g., Castle v. Sangamo Weston, Inc., 744 F.2d 1464 (11th Cir. 1984) (transfer from attorneys for private plaintiff to attorneys for EEOC, while both engaged in preparation of a joint trial).
The existence of common interests between transferor and transferee is relevant to deciding whether the disclosure is consistent with the nature of the work product privilege. But "common interests" should not be construed as narrowly limited to co-parties. So long as transferor and transferee anticipate litigation against a common adversary on the same issue or issues, they have strong common interests in sharing the fruit of the trial preparation efforts. Moreover, with common interests on a particular issue against a common adversary, the transferee is not at all likely to disclose the work product material to the adversary. When the transfer to a party with such common interests is conducted under a guarantee of confidentiality, the case against waiver is even stronger.
In A.T. & T. (642 F.2d at 1300) the Court of Appeals approved the observations of Special Masters that
The exchange seems to us to partake of a consultation on tactics and strategy, the very things the work product privilege is designed to protect.
We believe our holding on the waiver issue furthers the purpose of the work product privilege by protecting attorneys' preparations for trial and encouraging the fullest preparation without fear of access by adversaries. The work product privilege rests on the belief that such promotion of adversary preparation ultimately furthers the truth-finding process. For MCI to contribute the fruit of its analysis to the Government on those issues common to their two cases ...