Court overturns lower court's refusal to recognize application of work product privilege to claim against Drain Commissioner
A contractor sued the Genesee County Drain Commissioner after a dispute arose following the failure of a sewer project. The Drain Commissioner had ordered an investigation, and then provided a copy of the resulting report to the project's design firm (AECOM). AECOM provided a copy to its insurer, Safeco, and to the Plaintiffs. The Commissioner argued that the content of the report could not be used by its adversary, the plaintiff contractor, because the report was privileged "work product" prepared in anticipation of litigation, and that it had not waived its privilege.
The judge ruled that since the report was provided to the design engineers--who had agreed to indemnify the Commissioner for any negligence--it had been provided to a potential adversary, and therefore the work product privilege had been waived. The Court of Appeals overturned this holding and sent the case back for the judge to review the report and decide which parts are privileged. It also advised the Court that it was irrelevant whether the Commissioner and AECOM were engaged in a joint defense when the Report was divulged, or whether a lawyer had been retained.