SAN DIEGO (Legal Newsline) - After a judge recently found a whistleblower’s attorney’s communications with federal regulators protected by the attorney work product doctrine, partners are not sure how other courts would respond to rulings involving common interest exception in whistleblower cases.

 

“This is the first of its kind,” Steven J. Pearlman, partner in the Labor & Employment Law Department and co-head of Proskauer’s Whistleblowing & Retaliation Group, told Legal Newsline. “So it’s hard to say how other courts will respond. But it was a favorable decision for the court.”

 

A magistrate judge in Bofl Federal Bank v. Erhart ruled that sending federal regulators information about the case was regulated by the attorney work product doctrine because both sides were looking for the same exact information.

 

“What happened in this case is that a whistleblower’s attorney had reached out to the media and the government and the communications with the media was not privileged,” Pearlman explained. “With the government it was considered private. It is an arguable opinion for the whistleblower.”

 

The co-head of the international law firm says the court found that the whistleblower’s attorney had interests similar to the regulators’ making it a commonality of interest resulting in no waiver to the work product doctrine.

 

“They wanted to accomplish the same thing so there was no conflict of interest,” he said.

 

Although it is rare to find no conflict of interest between both sides of a case, it is common to see whistleblowers face retaliation from employers. There are a variety of different claims that whistleblowers can bring.

 

“Some can get demoted, denied a promotion or even terminated,” Pearlman said. “Many employers prevail to show there was no retaliation.”

 

It is not clear if the company ever found the actual leak to the media or why the defendant sought out information about the attorney’s communications with regulators, but the company served a subpoena when it suspected that the whistleblower’s attorney had sent information to the media.

 

Following the subpoena, the attorney showed documents that were sent to a newspaper, other third parties and communications between her and two federal regulators.

 

“By sending these communications to law enforcement agencies, [the employee’s counsel] did not waive work product protection: ‘[A]ttorney work-product protection is not automatically waived upon disclosure to third parties… because ‘the purpose of the work product rule is… to protect it only from the knowledge of opposing counsel and his client.’” the magistrate judge ruled.

 

“Further, ‘[d]isclosure to [a] person with interest common to that of attorney or client is not inconsistent with intent to invoke work product doctrine’s protection and would not amount to waiver.’ In the context of work product, common interest is more broadly construed to include disclosure to third parties.”

 

The decision could have implications for employers in future whistleblower cases when finding common interest exception cases.

 

An employee filed suit in October 2015 alleging their employer fired them for uncovering violations of law and reporting them to his supervisors. The company recorded that the employee was terminated for job abandonment.

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