Spotlighting In-House Memos, Ninth Circuit Adopts Work-Product Waiver Standard

The Ninth Circuit has issued a decision that for the first time adopted a waiver standard for the work-product doctrine – a standard that is significantly different than the standard governing attorney–client privilege waiver. The case involved a high-stakes valuation report prepared by law firm DLA Piper for a company making its case to the IRS. The law firm’s report identified in a footnote, but did not disclose, two in-house counsel memos germane to the valuation. The appeals court, explains a post in the Presnell on Privileges blog, ruled that the company “waived the attorney–client privilege by disclosing the two in-house counsel memos to DLA. The court determined that [the company] retained DLA to provide a non-legal valuation report rather than to obtain legal advice. The court also found waiver of the work-product doctrine without performing a separate analysis.”