Last week's Privilege Point described a decision holding that a litigant waived its work product protection by disclosing work product to a third party witness who had not agreed to keep it confidential. City of Almaty v. Ablyazov, No. 15-CV-05345 (AJN) (KHP), 2019 U.S. Dist. LEXIS 111607 (S.D.N.Y. July 3, 2019). That opinion cited a 2018 Southern District of New York case that assessed whether the original disclosing party had "reason to believe" that the recipient would be "likely" to disclose work product to an adversary, even if the recipient did not do so. Hedgeserv Ltd. v. SunGard Sys. Int'l Inc., No. 16-cv-5617 (LGS) (BCM), 2018 U.S. Dist. LEXIS 202535, at *6 (S.D.N.Y. Nov. 20, 2018).

An even earlier Southern District of New York case seemed to take the appropriate approach. In United States v. Ghavami, 882 F. Supp. 2d 532 (S.D.N.Y. 2012), prosecutors wanted to access a government cooperator's tape recordings of others in a criminal bid-rigging case. The taped conversation included the other participants' work product. The court explained that the risk of the work product falling into the adversary's hands "must be evaluated from the viewpoint of the party seeking to take advantage of the doctrine." Id. at 541. The court acknowledged that there "is always some danger that the recipient of work product is, or will later become, an informant." But the court wisely held that such a possibility "cannot constitute a 'substantial risk' that the work product would be disclosed to the adversary." Id. The court denied the government's motion to access the work product-protected portion of the recordings.

It would seem that the correct analysis should examine the work product holder's original disclosure to a third party the holder reasonably believed to be friendly. If the friendly third party later turns on the holder and further discloses the work product to an adversary, it should be treated the same way courts treat a theft and later disclosure of fragile privileged communications. Although sometimes there is no way to "put the toothpaste back in the tube," courts should find there has not been a waiver – and prohibit use of the improperly disclosed work product as evidence.