Florida Waiver Ruling Reinforces Substance Over Form
First published by Law360, January 29, 2018
By Tirzah Lollar and Kristen Eddy
In December 2017, a federal magistrate judge in Florida determined that law
firm Morgan Lewis & Bockius LLP had waived work-product protection over witness
interview notes and memoranda compiled during an internal investigation of its
publicly traded client, General Cable Corp., by “orally download[ing]” such materials
to the U.S. Securities and Exchange Commission. Finding waiver, the court required
Morgan Lewis to produce the materials to two former GCC executives charged by
the SEC in early 2017 with financial fraud.
It declined, however, to require the
firm to produce interview notes and memoranda that had not been orally provided
to the SEC, rejecting the former executives’ argument that a “substantial need”
entitled them to such materials. The order reinforces the serious implications that
disclosure — even oral disclosure — to third parties, particularly government
regulators, can have on work-product protection in the context of government and
internal investigations.
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