In In re Ex parte Application of financialright GmbH, No. 17-mc-105 (DAB) (S.D.N.Y. June 22, 2017), the court held that disclosure of privileged investigation information to the Department of Justice did not waive privilege as to third party civil litigants where the disclosing party had a non-waiver agreement with the government.  This matter relates to an application by individual owners of Volkswagen and Audi cars in Germany for an order pursuant to 28 U.S.C. § 1782 granting leave to obtain discovery for use in proceedings in the German Courts.  Movants sought very broad discovery of materials (“practically a universe of documents”) prepared during or relating to Jones Day’s extensive investigation of emissions issues, which involved review of millions of documents and interviews of hundreds of VW employees summarized and analyzed in “innumerable” internal memoranda.  The court addressed the question whether disclosure of privileged investigation information to the DOJ waived privilege as to third parties.  Jones Day stated that it had never submitted its interview notes to VW or to the DOJ.  However, in the course of cooperating with the DOJ’s criminal investigation, Jones Day entered into an agreement with the DOJ to preserve VW’s claims of attorney-client privilege and work product protection for information disclosed to the DOJ in the course of that cooperation.  The agreement stated that VW, through Jones Day, intended to provide the DOJ oral briefings regarding its investigation, and that VW may furnish additional information in connection with the oral briefings; to the extent that VW provided privileged materials to the DOJ, VW did not intend to waive privilege as to those materials; and the DOJ would keep privileged materials confidential “except to the extent [the DOJ determined] in its sole discretion” that disclosure would further the discharge of its duties and responsibilities or was otherwise required by law.  The court noted that the Second Circuit has not established a rigid rule regarding waiver where the disclosing party has entered into an explicit non-waiver agreement with the government.  The court also cited decisions by sister courts in the Southern District of New York that had held that disclosure to the government did not waive privilege where the government had entered into a non-waiver agreement.  “The Court here is swayed by the cases holding that disclosures made pursuant to non-waiver agreements do not waive the protections of the work product doctrine or attorney-client privilege, recognizing . . . the ‘strong public interest in encouraging disclosure and cooperation’“ with law enforcement agencies.  The court held that the DOJ’s discretion to disclose the materials to third parties did not require a different result, because “that discretion is cabined” by the requirement that disclosure be in furtherance of its duties or otherwise required by law.