Key takeaways

• A Magistrate Judge in the U.S. District for the Southern District of Florida recently held in SEC v. Herrera that a law firm waived work product protection for its interview memoranda when counsel provided oral downloads of those interviews to the U.S. Securities and Exchange Commission (“SEC”).
• The Court’s broad ruling highlights the challenges companies face in balancing the desire to cooperate with government regulators with the risks that sharing of information may result in waiver of privileged or work product material in civil litigation down the road.
• As long as the SEC and Department of Justice ("DOJ") continue to make it clear that companies are credited for providing downloads as part of their cooperation during an internal investigation, the Herrera ruling could create a significant dilemma for companies, and is likely to reshape the way the SEC and cooperating companies deal with witness interviews.