For obvious reasons, the law encourages settlements. During settlement negotiations, participants may be tempted to disclose work product-protected documents or intangible communications. Can participants or even third parties successfully argue that such disclosure waived that protection?

In Warrington v. Patel, Case No. 2:22-cv-77-JES-KCD, 2024 U.S. Dist. LEXIS 31932, at *3 (M.D. Fla. Feb. 26, 2024), the court “urged settlement discussions and offered its courtroom.” Plaintiff’s lawyer used a PowerPoint and other documents, which the defendant later sought in discovery after the settlement talks failed. The plaintiff claimed work product protection, but the court understandably held that “when work product is willingly revealed to an adversary, as here,” the disclosing party waives that protection — quoting another court’s popular analogy: “[t]he Court ‘cannot put that toothpaste back in the tube.’ ” Id. at *5 (citation omitted).

Nationally, courts take differing positions on this key issue. And lawyers should also be on the lookout for court rules such as Virginia Code § 8.01-581.22 (“use of attorney work product in a mediation shall not result in a waiver of the attorney work product privilege”).