## Facts

- Information Resources, Inc. (IRI) sued Dun & Bradstreet Corp., A.C. Nielsen Co., and IMS International, Inc. for treble damages under federal antitrust law.
- During discovery, defendants sought materials IRI had voluntarily submitted to governmental antitrust authorities, including the U.S. Department of Justice Antitrust Division, the Canadian Competition Tribunal, and the European Commission.
- IRI made the submissions to encourage governmental enforcement action against defendants that could aid IRI’s private lawsuit.
- IRI refused production, asserting the submissions were protected attorney work product and that disclosure to the agencies did not waive that protection as against defendants.
- For purposes of resolving the motion, the court assumed (without deciding) the disputed materials qualified as attorney work product.

## Issues

1. Whether IRI’s voluntary disclosure of asserted work-product materials to governmental antitrust authorities, made to encourage enforcement against defendants, waived work-product protection in the private litigation.

## Decision

- The court granted defendants’ motion to compel.
- Assuming the submissions were work product, IRI waived any work-product protection by voluntarily disclosing them to governmental agencies under the circumstances presented.
- The materials IRI provided to the governmental authorities were discoverable by defendants.

## Legal Principles

- Work-product protection may be waived by disclosure to third parties when the disclosure is inconsistent with maintaining secrecy from the adversary.
- Disclosure to the government may avoid waiver where the disclosure occurs within a genuine common-interest or joint-defense setting in which the government and the producing party share a common litigation objective against the same adversary.
- Courts generally reject “selective waiver” that would allow a party to disclose work product to government enforcers for strategic benefit while withholding the same materials from private litigation opponents.

## Conclusion

Because IRI voluntarily provided the disputed materials to antitrust authorities to spur governmental action against the same parties it sued privately, and the disclosure was not shown to be within a joint-defense/common-interest arrangement, the court held that any work-product protection was waived and ordered production in discovery.


Info. Res., Inc. v. Dun & Bradstreet Corp., 999 F. Supp. 591 (S.D.N.Y. 1998)