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Casey IRACs are produced by an AI that analyzes the opinion’s content to construct its analysis. While we strive for accuracy, the output may not be flawless. For a complete and precise understanding, please refer to the linked opinions above.

Keywords

lawsuitplaintiffattorneysubpoenaprecedentcorporationprivileged communicationattorney-client privilege
attorneydiscoveryrespondentappellantappelleegrand jury

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In re Subpoenas Duces Tecum, 738 F.2d 1367, 238 U.S.App.D.C. 221, 39 Fed.R.Serv.2d 611, Fed. Sec. L. Rep. P 91,566, 16 Fed. R. Evid. Serv. 165

Facts

The case arose from two lawsuits against Tesoro Petroleum Corporation, involving allegations that the corporation manipulated its stock to convert from a public to a private entity to evade disclosure obligations related to illegal payments to foreign officials. In response to SEC inquiries, Tesoro voluntarily disclosed documents from an internal investigation conducted by its law firms, Fulbright & Jaworski and Vinson & Elkins. The plaintiffs sought these documents through subpoenas, leading to the dispute over the applicability of attorney-client and work product privileges.

Appellees, movants below, are seeking copies of documents which have been furnished by appellants, respondents below, to the Securities and Exchange Commission (SEC or Commission) and to a grand jury.

Issue

Whether Tesoro Petroleum Corporation waived its attorney-client and work product privileges by voluntarily disclosing documents to the SEC.

The questions before us are whether the District Court correctly determined that appellants' voluntary disclosure of the documents to the SEC effected waivers of attorney-client and work product privileges with respect to the documents now sought for discovery in the Texas suits.

Rule

Voluntary disclosure of privileged communications waives the privilege, as it is inconsistent with maintaining confidentiality. The attorney-client privilege is not absolute and can be waived by voluntary disclosure to third parties.

Attorney-client communications ordinarily are privileged, and thus are protected from discovery by a party opponent under Fed.R.Civ.P. 26(b).

Analysis

The court analyzed the circumstances of Tesoro's voluntary disclosure to the SEC, concluding that the act of disclosure was inconsistent with the maintenance of attorney-client confidentiality. The court referenced precedent indicating that a client cannot selectively waive privilege for some parties while asserting it against others. The court also found that the work product privilege was similarly waived due to the voluntary nature of the disclosure and the lack of reasonable expectations of confidentiality.

Contrary to appellants' assertion, the waiver theory explicated by the court in Permian is not limited to circumstances in which material that has been disclosed to one federal agency is sought by another federal agency.

Conclusion

The court affirmed the lower court's ruling, concluding that Tesoro had waived its attorney-client and work product privileges by disclosing the documents to the SEC.

Affirmed.

Who won?

Plaintiffs prevailed as the court upheld the enforcement of the subpoenas, determining that Tesoro could not assert privilege over documents it had previously disclosed.

We affirm.

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