## Facts

- Albert Reinfeld, a shareholder plaintiff (on behalf of a class), sued Meshulam Riklis and related defendants in federal court, asserting claims arising from alleged misconduct connected to corporate transactions involving Schenley Industries and Guinness PLC.
- During discovery, Reinfeld served document requests on defendant Guinness PLC.
- Guinness withheld certain responsive materials, asserting both the attorney–client privilege and work-product protection.
- Reinfeld argued that Guinness had already produced the same or related materials to U.K. (English) governmental authorities during an official investigation, and that this prior disclosure waived any protection in the U.S. civil case.
- A magistrate judge ruled that Guinness’s disclosure to the English government waived the attorney–client privilege as to the disclosed communications, but did not waive work-product protection.
- Reinfeld sought district-court review of the magistrate judge’s discovery ruling, pressing the claim that the work-product protection should also be treated as waived because the documents had been shared with governmental investigators.

## Issues

1. Does a party waive attorney–client privilege by voluntarily producing privileged communications to U.K. governmental authorities conducting an investigation?
2. Does that same production waive work-product protection, or can work product remain protected where the disclosure does not operate as disclosure to a litigation adversary?

## Decision

- The district court upheld the magistrate judge’s ruling.
- The court agreed that Guinness’s disclosure to the English government waived attorney–client privilege for the communications that had been disclosed.
- The court also agreed that the disclosure did not, on the showing made, waive work-product protection for materials qualifying as work product.
- Accordingly, Guinness was not compelled to produce documents to the extent they remained protected work product, even though attorney–client privilege had been waived for disclosed attorney–client communications.

## Legal Principles

- Attorney–client privilege depends on confidentiality; voluntary disclosure of privileged communications to a third party is generally inconsistent with confidentiality and results in waiver as to the disclosed communications.
- Work-product protection serves a different function than attorney–client privilege and is not automatically waived by every third-party disclosure.
- Work-product waiver commonly turns on whether the disclosure is inconsistent with maintaining the material from an adversary in litigation, including whether disclosure materially increases the chance an adversary will obtain the material.
- Disclosure to governmental investigators, without more, does not necessarily amount to disclosure to a litigation adversary for work-product purposes.
- The party asserting waiver of work-product protection bears the burden to show circumstances that make continued protection unfair or incompatible with the adversary process.

## Conclusion

In Reinfeld v. Meshulam Riklis, et al., the court upheld a discovery ruling distinguishing waiver rules for attorney–client privilege and work product: Guinness’s production of documents to U.K. authorities waived attorney–client privilege for what it disclosed, but did not waive work-product protection absent a stronger showing that the disclosure effectively exposed the materials to a litigation adversary.


Reinfeld v. Meshulam Riklis, et al., 1991 WL 41659 (1991)