In Action Substantively Governed by State Law, Waiver of Privilege Is Determined by State Law, But Waiver of Work Product Protection Is Governed by Federal Law — Counsel Not Permitted to Make Independent Claim of Work Product Where Client Has Waived

From SEC v. McNaul, 2011 U.S. Dist. LEXIS 62932 (D. Kan. June 14, 2011):

Waiver of attorney-client privilege is governed by state law, while waiver of the work product protection is governed by federal law. Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 702 n.10 (10th Cir. 1998).

Note: This opinion adopts the magistrate judge opinion reported in our post of April 18, 2011) (Counsel Not Permitted to Make Independent Claim of Work Product Where Client Has Effected Waiver of Privilege and Work Product — Client’s Assertion of Advice of Counsel Defense Prevails)

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