Disclosing Results of Counsel’s Internal Investigation Waived Privilege

On July 8, 2022, Justice Masley of the New York County Commercial Division issued a decision in Principia Partners LLC v Swap Fin. Group, LLC, 2022 NY Slip Op. 32220(U), holding that disclosing the results of counsel’s internal investigation waived privilege, explaining:

Disclosure of a privileged document generally operates as a waiver of the privilege unless it is shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer undue prejudice if a protective order against use of the document is issued. The burden is on the proponent of the privilege to prove that the privilege was not waived. A client who publicly discloses a privileged matter waives the privilege. Here, SFG disclosed the findings of its internal investigation to Principia by stating that SFG found both instances of underpayment and overpayment. The court agrees with the Special Master that this disclosure was a partial waiver only to the extent that it covers only the scope of the investigation about underpayments and overpayments.

(Internal quotations and citations omitted).

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