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Corporations under investigation frequently decide to share information derived from privileged investigative materials—in particular, interview memoranda—as part of cooperation efforts with the government. But a recent case from the Southern District of Florida makes clear that counsel must tread carefully when assessing whether and how to share that information, as doing so may risk waiving the work product privilege over the underlying materials and potentially their entire subject matter. In a recent order issued in SEC v. Herrera, Order on Defendants’ Motion to Compel Production from Non-Party Law Firm, SEC v. Herrera, et al., No. 17-20301 (S.D. Fl. Dec. 5, 2017), a federal magistrate judge concluded that a law firm waived privilege over its interview memoranda and interview notes by providing the SEC with “oral downloads” of the interviews, which the court concluded were the “functional equivalent” of disclosing the memoranda and notes.

In terms of practical impact, the decision appears to expand the scope of materials that may be obtained as a result of actual waiver through disclosure, and further blurs the line between subject matter waiver and actual waiver. Both results unfortunately provide potent new tools for litigants seeking to obtain materials previously considered privileged.

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