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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: August 6, 2018

Party Waives Work Product Protection By Voluntarily Producing Documents to SEC

On July 25, 2018, Justice Masley of the New York County Commercial Division issued a decision in Antipodean Dom. Partners, L.P. v. Clovis Oncology, Inc., 2018 NY Slip Op. 31812(U), holding that a party had waived work product protection by voluntarily producing documents to the SEC, explaining:

Generally, voluntary disclosure of privileged communication waives privilege for all other communications on the same subject. That rationale applies where a party discloses otherwise privileged information to comply with an SEC subpoena that neither coerces
nor requires compliance. However, where a party secures a non-waiver agreement prior to disclosure of privileged material, courts have held such disclosures do not waive privilege.

Clovis has not established that the documents remain privileged. First, Clovis relies on In re Steinhardt Partners, L.P. for the proposition that disclosure of documents to the SEC does not constitute an automatic waiver of work product privilege. While true, Steinhardt also holds that work product privilege is waived where disclosure is voluntary and in the face an adversarial relationship with the SEC. Where courts have found no waiver of the privilege are situations in which the disclosing party and the government may share a common interest in developing legal theories and analyzing information, or situations in which the SEC and the disclosing party have entered into an explicit agreement that the SEC will maintain the confidentiality of the disclosed materials. It is undisputed that a common interest between Clovis and SEC did not exist here. Further, the absence of a non-waiver agreement bolsters any implication of the SEC’s adversarial posture with Clovis. Nevertheless, Clovis voluntarily prepared and produced the Documents.

(Internal quotations and citations omitted).

An issue that arises in almost all complex commercial litigation is identifying evidence that should be withheld from production in evidence because it is subject to the attorney-client or other privilege. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding the attorney-client, common interest, work product or other privileges or exemptions from production of evidence.

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