Circumscribing the Attorney-Work-Product Doctrine in Chapter 11

Finance and restructuring partners Patrick Jackson and Ian Bambrick and associate Jaclyn Marasco coauthored an article for the American Bankruptcy Institute Journal that discusses Imerys Talc America rulings on the common-interest and attorney-work-product (AWP) doctrine’s relation to the bankruptcy case generally and to the proposed chapter 11 plan.

The AWP doctrine is rooted in Rule 26 (b) (3) of the Federal Rules of Civil Procedure, and the authors explain that AWP protection can survive disclosure to a third party as long as the disclosure does not “enable an adversary to gain access to the information.”

The authors outline debtors’ and parents’ arguments, the plan objector’s argument and the court’s decision, which concludes that “the debtors and parent were adverse with respect to potential alter-ego claims and the parent’s plan contribution, such that the sharing of AWP between them with respect to those issues had resulted in a waiver of the AWP protection that might otherwise have applied.”

In conclusion, the authors find that, together, “Imerys Talc America rulings on the common-interest and AWP doctrines underscore the importance of identifying issues of legal adversity between members of a corporate family in the context of a member’s planned or pending chapter 11 proceedings.”