## Facts

- Qwest Communications International Inc. faced consolidated federal securities class actions in the District of Colorado while also under investigation by the DOJ and SEC.
- To cooperate with the DOJ and SEC, Qwest voluntarily produced about 220,000 pages of materials that it asserted were protected by attorney-client privilege and the work-product doctrine, under confidentiality agreements.
- Qwest withheld an additional roughly 390,000 pages of privileged materials from the government.
- In the private securities litigation, plaintiffs moved to compel production of the same 220,000 pages disclosed to the DOJ/SEC.
- Qwest opposed, arguing its disclosures constituted a “selective” (limited) waiver preserving privilege and work-product protection against private litigants.
- The district court ordered production, holding that Qwest’s voluntary disclosure to the government waived privilege and work-product protection as to the disclosed materials.
- Qwest petitioned the Tenth Circuit for a writ of mandamus to vacate the discovery order.

## Issues

1. Whether voluntary disclosure of privileged and work-product materials to the DOJ and SEC pursuant to confidentiality agreements preserves protection against discovery by private civil litigants under a doctrine of selective waiver.
2. Whether the discovery order compelling production constituted a clear abuse of discretion justifying mandamus relief.

## Decision

- The Tenth Circuit denied mandamus.
- The court declined to adopt selective waiver on the facts presented.
- The court held that Qwest’s voluntary disclosures to the DOJ and SEC waived attorney-client privilege as to the disclosed materials.
- The court further held that disclosure to enforcement agencies could waive work-product protection because it is inconsistent with keeping the material from adversaries and increases the likelihood adversaries will obtain it.
- The district court’s order compelling production to private plaintiffs remained in effect.

## Legal Principles

- Attorney-client privilege is strictly construed; voluntary disclosure to a third party generally waives the privilege by destroying confidentiality.
- Confidentiality agreements with government investigators, without more, do not prevent waiver where the disclosure permits governmental use in investigations and proceedings.
- Selective waiver (preserving privilege against private parties after disclosure to the government) is generally disfavored; creating such an exception is better left to Congress or formal rulemaking.
- Work-product protection may be waived by voluntary disclosure in a way inconsistent with secrecy from adversaries, including disclosure that materially increases the chance an adversary will obtain the materials.
- Mandamus is an extraordinary remedy; the petitioner must show a clear and indisputable right to relief and that the lower court’s ruling amounts to a clear abuse of discretion or usurpation of power, a standard rarely met by discovery orders.

## Conclusion

The Tenth Circuit refused to recognize selective waiver for materials voluntarily produced to the DOJ and SEC under confidentiality agreements, held that the disclosures waived attorney-client privilege and work-product protection as to private litigants, and denied mandamus because the district court’s discovery ruling was not a clear abuse of discretion.


In re Qwest Commc'ns Int'l Inc. Sec. Litig., 450 F.3d 1179 (10th Cir. 2006)