## Facts

- Plaintiffs in civil antitrust litigation sought discovery from foreign corporate defendants accused of participating in a vitamin price-fixing conspiracy.
- The discovery requests targeted written communications prepared by or for the foreign defendants in anticipation of litigation or government investigations.
- Plaintiffs conceded the communications initially could qualify as attorney work product.
- Plaintiffs argued, however, that the defendants waived work-product protection by submitting the communications to various foreign governments and competition authorities during cartel investigations.
- The foreign defendants responded that their submissions were effectively compelled by the foreign authorities’ investigative demands and sanction powers.
- The foreign defendants also asserted that the submissions occurred in the context of cooperation or leniency processes, where withholding information could trigger further compulsory demands and penalties.
- Plaintiffs moved to compel production on the theory that disclosure to governmental enforcers is inconsistent with keeping work product from civil litigants.

## Issues

1. Whether defendants waived work-product protection by submitting work-product materials to foreign governments and competition authorities during investigations and leniency/cooperation efforts.
2. Whether disclosures made under effective governmental compulsion (including the threat of additional demands and sanctions) prevent waiver of work-product protection in later U.S. civil discovery.

## Decision

- The court held that the defendants did not waive work-product protection on the record presented.
- The court treated the foreign submissions as effectively compelled in light of the foreign authorities’ investigative powers and the potential consequences of noncooperation.
- The court therefore denied (or otherwise refused to grant) plaintiffs’ request to compel production of the protected communications based solely on the fact of the foreign submissions.

## Legal Principles

- Work-product protection applies to materials prepared in anticipation of litigation and is intended to shield an attorney’s preparation from disclosure to adversaries in later proceedings.
- Waiver of work-product protection generally turns on whether the disclosure is voluntary and inconsistent with maintaining confidentiality against an adversary.
- Disclosure made under legal compulsion, or under a realistic threat of compulsory process and sanctions, is less likely to constitute a waiver because it is not a free relinquishment of protection.
- The fact that a party provided work product to a government authority in an enforcement setting does not automatically establish waiver in private civil discovery; courts examine the context and degree of compulsion.
- A party claiming waiver bears the burden to show that the circumstances of disclosure were sufficiently voluntary and adversarial to justify treating the protection as forfeited.

## Conclusion

In *In re Vitamin Antitrust Litigation*, the court declined to find work-product waiver where foreign defendants had submitted protected communications to foreign competition authorities as part of investigation and leniency/cooperation processes, concluding that the disclosures were effectively compelled and therefore did not open the materials to U.S. civil discovery.


In re Vitamin Antitrust Litigation, 2002 WL 35021999 (2002)