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