Whereas the privilege and work-product doctrine generally require confidentiality, cooperation with the government often necessitates disclosure. The Department of Justice (DOJ) and Securities and Exchange Commission (SEC) instruct cooperating companies to disclose facts learned in investigations but do not require waiver of privilege or work-product protection. Case law has long recognized a distinction between facts (not protected) and communications or attorney documents discussing facts (protected). Thus, to the extent cooperating companies can share facts with the government, that should not imperil their privilege or work-product protection.
However, the government’s position appears to diverge from the law governing fact work product in one important respect. The DOJ and SEC state in their enforcement manuals that, in requesting facts, they do not seek “non-factual or ‘core’ attorney-client communications or work product,” which they describe as “for example, an attorney’s mental impressions or legal theories.” Courts categorize such material as opinion work product. Investigating companies therefore have a strong basis to withhold opinion work product when cooperating with the government.
But the work-product doctrine also shields fact work product, which the government does not expressly address in its policies. Complicating matters further, the SEC reserves the right to ask cooperating companies for items such as chronologies, which under certain circumstances could qualify as fact work product. Thus, between the facts the government says it wants and the so-called “core” privilege and work product it says it will not request lies the significant, largely unaddressed gray area of fact work product.