December 11, 2017

On December 5, 2017, a Florida federal magistrate judge concluded in S.E.C. v. Herrera that attorney “oral downloads” of interview notes and memoranda to the US Securities and Exchange Commission (SEC) waived work product protection over these materials as to third-party litigants.  The case highlights the risks entailed in communicating with government investigators about the results of an internal investigation and that attorneys must take care to mitigate those risks.  It is important to note that the court addressed only the work product protection and did not address the attorney-client privilege.

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