Does “Memo” About A Privileged Memo Waive Privilege?

The defendant mortgage company conducted an internal investigation under the aegis of its outside lawyers, after an allegation that it had submitted false information to HUD. Company attorneys then prepared a memo summarizing the findings and reporting on some of the interviews. The company then prepared a second memo that summarized the first, discussing some but not all details, and doing so in a way that was favorable to the company. That second memo was disclosed to HUD. Some time later, in an anti-retaliation case, the company was sued by an employee who wanted to see the first memo, claiming that privilege had been waived. In his blog, Todd Presnell explains the judge’s ruling, in this case that came before a Missouri federal court.