No Waiver Where Gov’t Produces Privileged Documents Pursuant to a Subpoena

Judge Royce C.  Lamberth, who oversaw the Foreign Intelligence Surveillance Court after September 11, 2001, issued a point-blank ruling that a government agency’s disclosure of privileged information to the U.S. Senate’s Permanent Subcommittee on Investigations did not constitute a waiver of the attorney–client privilege or deliberative-process privilege.  Spears v. First American eAppraiseIT, 2014 WL 6783737 (D.D.C. Dec. 2, 2014).  You may read the decision here.

Fallout from Financial Collapse

The U.S. Senate’s Permanent Subcommittee on Investigations issued a report in 2011 on the 2007–2008 Wall Street financial collapse.  The report included references and summaries of documents that the Office of the Comptroller of Currency provided to the Subcommittee under seal pursuant to a subpoena duces tecum.

In a subsequent civil lawsuit against First American eAppraiseIT, the plaintiffs subpoenaed the OCC requesting that it produce the three documents behind the summaries that the Subcommittee publicly disclosed in its report.  The documents were a memorandum from OCC (then Office of Thrift Supervision) attorneys to its Chief Counsel, OCC enforcement attorney’s notes containing legal analysis of the investigation of Washington Mutual Bank, and a memorandum of an OCC Regional Appraisal to OCC Enforcement Counsel.

Privilege Assertions

The OCC objected on grounds that the attorney–client privilege and the deliberative-process privilege protected the documents from disclosure.  The plaintiffs agreed with the privilege assertions, but stated that the OCC’s disclosure of the documents to the Subcommittee—and the Subcommittee’s subsequent disclosure in its public report—constituted privilege waiver.

Judge Lamberth rejected these arguments.  He ruled that the OCC had not waived the privileges because the Subcommittee, and not the OCC, had publicly disclosed the documents’ content.  He ruled that the OCC’s disclosure of documents to the Subcommittee was not tantamount to the OCC publicly disclosing the documents, noting that “OCC is not responsible for” the Subcommittee’s report.

Judge Lamberth also held that OCC did not waive the privileges by producing the documents to the Subcommittee because it did so in response to a subpoena.  He held that “documents produced pursuant to a subpoena are not voluntarily disclosed,” noting that “[t]here is less reason to find waiver when documents have been provided pursuant to a subpoena, and provided under seal.”

POP Analysis

Judge Lamberth distinguished each case on which the plaintiffs relied in asserting their privilege-waiver argument, but provided little case-law support for his rulings that producing documents pursuant to subpoena does not constitute privilege waiver or that a government branch’s disclosure does not equate to public disclosure by the party originally producing the documents.  Yet, for lawyers looking for authority supporting the argument that producing documents pursuant to a subpoena does not constitute voluntary disclosure and privilege waiver, Judge Lamberth provides it here.