Unlike the fragile attorney-client privilege that can be waived even upon disclosure to family members, the work product doctrine is much more robust. A recurring corporate scenario confirms this important distinction.
In AbCellera Biologics Inc. v. Bruker Cellular Analysis, Inc., a company named PhenomeX “sought to be acquired” — and disclosed to several “potential acquirers” a “7-slide litigation status update” of pending litigation prepared by its in-house counsel. Case No. 20-cv-08624-JST (VKD) 2025 U.S. Dist. LEXIS 88459, at *4 (N.D. Cal. May 8, 2025) (internal citation omitted). A plaintiff litigating against PhenomeX and then its successful acquirer argued that (1) the status update was prepared for a business purpose and thus did not deserve work product protection and (2) PhenomeX had waived any work product protection. The court predictably held that (1) the “additional [business] purpose does not defeat work product protection” and (2) disclosure to potential acquirers in a data room did not waive the work product protection, because it had not “substantially increased the likelihood that potential adversaries could obtain its contents.” Id. at *8, *10.
Courts addressing this frequent scenario universally agree with this analysis, providing a paradigmatic example of the work product doctrine’s hardy protection.
