In B.M.I. Interior Yacht Refinishing, Inc. v. M/Y Claire, No. 13-62676 (S.D. Fla. July 15, 2015), the district court held that partial disclosure of a non-testifying expert’s report outside of litigation did not waive work product protection for the remainder of the report. In this in rem maritime lien foreclosure action, the contractor, Nautical, sought production of a report that was prepared prior to the commencement of litigation at the request of the ship’s counsel by a consulting expert, Clifford. The owner of Nautical, Miles, accompanied Clifford as he inspected the ship. Clifford purportedly gave the resulting written report to the captain of the ship, and the captain then read some portion of the report to Miles over the telephone. Plaintiff argued, among other things, that any work product protection as to the entire report was waived when the consultant read portions of the report to Miles. The court rejected plaintiff’s argument. The court noted that the work product protection may be asserted by either the attorney or the client and that each can waive that immunity, but only as to himself, as both attorney and client benefit from the immunity. According to the court, an attorney has an independent interest in the privacy of his work product, even when the client has waived its own claim, as long as invoking the privilege would not harm the client’s interests. Here, the court found that the captain of the ship, not counsel, had disclosed portions of the report, and counsel’s interest was not in conflict with the ship’s interests. The court alternatively held that disclosure of a portion of the report in a non-litigation setting did not waive work product protection over the remainder of the report. The court stated that, generally, when work product is waived, the waiver is limited to the information actually disclosed, particularly where the disclosure pertains to work product held or created by a non-testifying expert. The court noted that the case did not present the unusual circumstance in which fairness may require further disclosure pursuant to Fed. R. Evid. 502(a)(3), that is, a situation in which a party selectively discloses protected information in an effort to gain a litigation advantage.
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Partial Disclosure Of Report Did Not Waive Work Product Protection As To Remainder
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