48.11 "AT ISSUE" DOCTRINE
As with the more traditional implied waiver doctrine, there are far fewer cases dealing with the "at issue" doctrine in the work product context than in the attorney-client privilege context. However, the Restatement clearly acknowledges the "at issue" waiver's occasional applicability to work product.
A party waives work-product protection by putting the protected material into issue, including claims of reliance on counsel and of good faith evidenced by consultation with counsel, or where determining the truth of the party's allegation requires examination of work product. Such waivers, like the analogous waivers of the attorney-client privilege, are based on considerations of fairness. 169
Several courts have analogized the court-created "at issue" doctrine to the "substantial need" analysis under Rule 26(b)(3). 170 The "substantial need" analysis does not depend on the explicit or implicit disclosure or use of work product but instead examines in the abstract whether the party seeking an adversary's work product can show that it needs the work product to illuminate a critical issue in the case. Similarly, the "at issue" doctrine allows the party seeking the work product to establish that the adversary has taken a position in litigation that in fairness calls for the disclosure of work product dealing with that position.
As in the attorney-client privilege context, courts have come to different conclusions when assessing an "at issue" waiver argument. Perhaps the most common and therefore significant example involves a company's assertion of what is called the Faragher/Ellerth affirmative defense, under which a company seeks dismissal of certain employment discrimination or sexual harassment claims by showing that the company promptly investigated the claims and took reasonable remedial measures. Because filing such an affirmative defense does not expressly disclose any privileged communications or work product, there is no express waiver. And because the affirmative defense does not point to or explicitly rely on any privileged communications or work product, it does not represent a classic implied waiver. However, courts unanimously agree that a company waives the attorney-client privilege by asserting a Faragher/Ellerth doctrine, and therefore must disclose any privileged communications created during the investigation upon which the company relies. Chapter 29 of this book discusses that issue.
Not surprisingly, nearly every court takes the same approach to work product. In 2010, the Northern District of Ohio made this clear.
The requested information is also not protected by either the attorney-client privilege or the work product doctrine. Spitzer has asserted the Faragher-Ellerth affirmative defense, namely, that it exercised reasonable care to prevent and correct promptly any
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discriminatory behavior. . . . By asserting a defense of adequate investigation, Spitzer has waived privileges for documents that constitute evidence of the investigation of the claims for discrim-ination. 171
Other courts have taken the identical approach. 172 Only a few courts take the opposite position. 173
As in the privilege context, courts sometimes warn companies that raising the affirmative defense will trigger such a waiver. The District of Colorado articulated this position in a 2008 case.
Courts have interpreted an assertion of the Faragher/Ellerth affirmative defense as waiving the protection of the work product doctrine and attorney-client privilege in relation to investigations and remedial efforts in response to employee complaints of discrimination because doing so...
