In In re Merck & Co. Securities, Derivative & “ERISA” Litigation, MDL No. 1658 (D.N.J. Dec. 12, 2012), the plaintiffs sought access to privileged materials that Merck had provided to the Department of Justice in connection with a government investigation.  Merck had provided the materials pursuant to a written agreement that the government would maintain the confidentiality of the materials and that Merck’s limited waiver of the attorney-client privilege and work product protection would not extend to any third party.  Relying on Westinghouse v. Republic of the Philippines, 951 F.2d 1414 (3d Cir. 1991), the court held that the disclosure to DOJ had waived the privilege and the plaintiffs were thus entitled to discovery of the materials.  Merck attempted to distinguish Westinghouse, relying on the Third Circuit’s statement that the agreement with DOJ preserved Westinghouse’s right to invoke the attorney-client privilege only as to the DOJ and did not appear in any way to have purported to preserve Westinghouse’s right to invoke the privilege against a different entity in an unrelated civil proceeding.  The Merck court found this language to be dicta that was intended only to address a reliance argument – an argument that here would have been unreasonable in light of the Westinghouse decision and many others rejecting limited waiver arguments.