When producing documents to regulators, financial services firms should remain mindful that such disclosures may inadvertently waive attorney-client privilege and work product protection as to third parties. In In re Steinhardt Partners, L.P., the Second Circuit held that the voluntary disclosure of documents to the SEC waived any work product protection of the same documents from a third party, though it declined to adopt a “per se rule that all voluntary disclosures to the government waive work product protection.” 9 F.3d 230 (2d Cir. 1993). In In re Kidder Peabody Securities Litigation, the S.D.N.Y. held that the disclosure of attorney-client materials and work product to an adverse government entity waived those privileges as to third parties, not only as to the materials provided, but also as to the underlying source documents. 168 F.R.D. 459 (S.D.N.Y. 1996). Furthermore, in Gruss v. Zwirn, the S.D.N.Y. found that the disclosure of privileged materials to the SEC, notwithstanding the existence of a confidentiality agreement between plaintiff and the SEC, constituted a waiver of the privilege. 2013 WL 3481350 (S.D.N.Y. July 10, 2013).
Firms also would be wise to consider factors affected by the status of different regulators. Information provided to the SEC may gain some protection from disclosure if it qualifies for certain provisions under the Freedom of Information Act. In contrast, the Financial Industry Regulatory Authority is not a governmental agency covered by the protections included in the F.O.I.A., because as a private entity it is not subject to the F.O.I.A.
Greenberg Traurig regularly counsels clients on these and other regulatory matters. If you have any questions or require assistance please contact a Greenberg Traurig attorney.