## Facts

- Permian Corporation and Occidental Petroleum Corporation (Occidental) were involved in hostile-takeover litigation in which Occidental produced large volumes of documents in discovery.
- To reduce privilege risk, the parties used stipulations and protective orders addressing inadvertent production and requiring notice before submitting the other side’s confidential material to regulators.
- While reviewing Occidental’s exchange-offer registration statement, the SEC sought access to relevant documents already produced to Mead in the takeover litigation.
- Occidental authorized Mead to provide Occidental’s documents to the SEC subject to conditions, including notice of what was delivered, confidentiality markings, and notice before the SEC shared documents with other agencies; the parties also had an oral understanding that Occidental would be told of other governmental requests so it could assert privilege.
- Mead delivered to the SEC 36 documents addressing crude-oil pricing legality, prepared by Permian personnel or outside counsel; Occidental learned by mid-December 1978 that the SEC possessed these documents and did not object to their retention by the SEC.
- The DOE later requested the same 36 documents from the SEC for a petroleum-pricing compliance investigation; Occidental objected and sued to enjoin the SEC from releasing them.

## Issues

1. Whether Occidental waived attorney-client privilege by voluntarily allowing disclosure of the documents to the SEC.
2. Whether any work-product protection was waived by the disclosure to the SEC notwithstanding confidentiality conditions and understandings.
3. Whether a “selective” or “limited” waiver doctrine permits disclosure to one regulator (SEC) without waiving attorney-client privilege as to another agency (DOE).

## Decision

- The D.C. Circuit affirmed in part, reversed in part, and remanded.
- The court held that Occidental’s voluntary disclosure to the SEC waived attorney-client privilege as to the 36 documents and rejected selective/limited waiver against other government agencies.
- The court upheld the district court’s finding (not clearly erroneous) that an agreement and circumstances preserved work-product protection, so the injunction could stand only on that basis.

## Legal Principles

- Attorney-client privilege depends on confidentiality; voluntary disclosure of privileged communications to a third party ordinarily waives the privilege.
- Selective disclosure to obtain regulatory advantage is inconsistent with waiver doctrine; attorney-client privilege is not preserved by attempting to limit downstream use after voluntary disclosure to an independent agency.
- Privileges are construed narrowly; courts will not create a broad “cooperation with regulators” exception to attorney-client waiver rules.
- Work-product protection serves the adversarial system by shielding litigation preparation; disclosure does not necessarily waive work-product immunity if it does not materially increase the likelihood that adversaries will obtain the material.
- A confidentiality understanding with a government recipient may support a finding that work-product protection was preserved, reviewed on appeal for clear error when grounded in factual findings.

## Conclusion

The court ruled that Occidental’s voluntary disclosure of the documents to the SEC waived attorney-client privilege as to other governmental requesters, rejecting selective waiver, but allowed continued protection for the materials as work product based on the parties’ confidentiality understanding, limiting injunctive relief to that ground.


Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981)