In re Subpoena Duces Tecum

The Securities and Exchange Commission (SEC) invited Tesoro Petroleum Corporation (Tesoro) to participate in its voluntary-disclosure program, by which companies could investigate and report to the SEC any illegal payments they made to foreign officials in exchange for leniency. Tesoro hired the law firm of Fulbright & Jaworski (Fulbright) (defendant) to conduct an investigation. Tesoro provided Fulbright’s investigation report and related documents (collectively, investigation documents) to the SEC. A federal grand jury subsequently obtained the investigation documents via subpoenas to Fulbright and the law firm of Vinson & Elkins (Vinson) (defendant), which represented Tesoro in connection with the grand-jury proceeding. Tesoro shareholders (plaintiffs) brought civil actions relating to Tesoro’s foreign payments. To support their cases, the shareholders issued subpoenas duces tecum to Fulbright and Vinson (collectively, lawyers) seeking the investigation documents. When the lawyers refused to produce the documents on attorney-client and work-product privilege grounds, the shareholders sued to enforce the subpoenas. The shareholders argued that the lawyers waived any privilege by voluntarily disclosing the investigation documents to the SEC. The lawyers responded that they intended only a limited waiver with respect to the SEC (which they claimed was obliged by SEC regulations to keep the investigation documents confidential) and otherwise intended to maintain the privileges. The district court rejected the lawyers’ limited-waiver argument and ordered them to comply with the subpoenas. The lawyers appealed.