Does Sharing Work Product With The Government Always Waive That Protection?

For decades, companies trying to cooperate with the government have hoped for a change in the general rule that disclosing privileged communications and/or work product to the government waives those protections. In nearly every case, disclosing attorney-client privileged communications to the government waives that fragile protection. But in the work product context, courts sometimes take a more forgiving view.

In RMS of Wisconsin, Inc. v. Shea-Kiewit Joint Venture, Case No. 13-CV-1071, 2015 U.S. Dist. LEXIS 74425, at *3 (E.D. Wis. June 9, 2015), plaintiff RMS disclosed work product to the FBI, "in cooperation with the FBI's investigation of the defendants." The court contrasted this situation with settings where such a disclosure generally waives work product protection: when the disclosing company and the government "are adversaries," and when the company "voluntarily submitted the information to a government agency to incite it to attack the [company's]