What Can Corporations Safely Share With Their Auditors?

Corporations risk waiving their fragile privilege protection by sharing protected communications with even the friendliest outsiders — such as their retained public relations consultants, etc. They must disclose some information to their auditors, but does that waive corporations' privilege protection?

In People v. National Rifle Ass'n of America, — N.Y.S.3d —, 2023 N.Y. App. Div. LEXIS 7006, at *12 (N.Y. App. Div. Dec. 28, 2023), the court applied the general rule in concluding that "[t]he attorney-client privilege was waived by disclosure to the NRA's outside auditor." Because the document at issue was "not prepared in anticipation of litigation . . . [the court] need not reach the parties' arguments regarding its waiver [of work product protection]." Id. at *13. This issue brings to mind an interesting backstory about work product waiver. Before the Enron collapse, courts uniformly held that disclosing work product to an auditor did not waive that more robust