
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1287        No. 97-1382                              UNITED STATES OF AMERICA,                        Petitioner-Appellee, Cross-Appellant,                                          v.                        MASSACHUSETTS INSTITUTE OF TECHNOLOGY,                        Respondent-Appellant, Cross-Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                             Hill,* Senior Circuit Judge,                                    ____________________                         and Pollak,** Senior District Judge.                                       _____________________                                 ____________________            Jeffrey Swope  with whom Matthew P.  Schaeffer and Palmer &  Dodge            _____________            _____________________     _______________        LLP were on brief for respondent.        ___            Sara S.  Holderness, Tax  Division,  Department  of Justice,  with            ___________________        whom Loretta C.  Argrett, Assistant Attorney General, Donald K. Stern,             ___________________                              _______________        United  States Attorney,  and  Charles  E.  Brookhart,  Tax  Division,                                       ______________________        Department of Justice, were on brief for petitioner.                                  ____________________                                  November 25, 1997                                 ____________________                                    ____________________        *Of the Eleventh Circuit, sitting by designation.        **Of the Eastern District of Pennsylvania, sitting by designation.                 BOUDIN, Circuit Judge.  This case concerns an attempt by                         _____________            the  Massachusetts  Institute  of  Technology to  assert  the            attorney-client  privilege   and  work-product   doctrine  in            response  to a  document  request  by  the  Internal  Revenue            Service.  The most important issue presented is whether MIT's            disclosure  of certain of the documents to another government            agency caused it to lose the privilege.  The background facts            are essentially undisputed.                 MIT  is a famous university with tax-exempt status under            26  U.S.C.    501(c)(3).    In  1993,  the IRS  conducted  an            examination of MIT's  records to determine whether  MIT still            qualified for  exempt status and to determine  whether it was            complying with  provisions relating  to employment taxes  and            the reporting of  unrelated business income.  In  aid of this            examination, the IRS requested from MIT copies of the billing            statements of law firms that had represented  MIT and minutes            of  the  MIT  Corporation  and  its  executive  and  auditing            committees.                 In  response, MIT  supplied the documents  requested but            redacted information claimed  to be covered by  the attorney-            client privilege or  the work-product doctrine  or both.   In            mid-1994 the IRS  requested that the redacted  information be            supplied, and MIT declined.  At this point the IRS sought  to            obtain the same documents in unredacted form from the Defense                                         -2-                                         -2-            Contract  Audit Agency ("the audit agency"), the auditing arm            of the Department of Defense.                 It appears that the same billing statements and possibly            some or all of the minutes sought by the IRS had earlier been            provided  to the audit  agency pursuant to  contracts between            MIT and components  of the Department of Defense.   The audit            agency helps  entities in  the Department  of Defense  review            contract performance  to be sure  that the government  is not            overcharged for services.  Not surprisingly, the audit agency            often reviews the private contractor's books and records.                   In November 1994, the audit  agency advised the IRS that            it would not turn  over the documents  provided to it by  MIT            without the  latter's consent,  which MIT  declines to  give.            The audit  agency had made  no unconditional promise  to keep            the  documents  secret,  but its  regulations  and  practices            offered  MIT  some   reason  to  think  that   indiscriminate            disclosure   was  unlikely.     The   IRS   then  served   an            administrative  summons  on  MIT  in  December  1994  seeking            specific  unredacted  minutes  of nine  meetings  of  the MIT            Corporation and auditing and executive committees in 1990 and            1991,  and attorneys' billing statements for almost all legal            expenses paid or  incurred by MIT from July  1, 1990, through            June 30, 1991.  26 U.S.C.    7402(b), 7604(a).                 When  MIT  declined to  comply,  the IRS  in  early 1996            petitioned  the district court  to enforce the  summons.  The                                         -3-                                         -3-            district   court  obtained   briefs,   heard  arguments   and            considered the matter  without an evidentiary hearing  on the            basis of  the declaration filed  by the IRS and  an affidavit            submitted by MIT.  In January 1997, the district court issued            a memorandum  and  order  enforcing  the  IRS  administrative            summons  as to the unredacted  legal bills and the unredacted            versions of most of the minutes sought by the IRS.                 The district court held that the disclosure of the legal            bills  to  the  audit  agency forfeited  the  attorney-client            privilege.  As  to the minutes, the district  court said that            the privilege  remained available because  the government had            not proved that  the minutes had been disclosed  to the audit            agency.   After reviewing  the minutes  in camera,  the court                                                    _________            found that  three contained  privileged material  and ordered            MIT to  turn over the  others as unprivileged or  because MIT            had  lost the privilege  by disclosing  the substance  of the            minutes in its now unprivileged legal bills.                  The  district   court  followed  a   different  path  in            resolving  MIT's work product objection.  The court held that            neither the  legal bills  nor the  minutes were  "prepared in            anticipation of  litigation or for  trial."  Fed. R.  Civ. P.            26(b)(3).  It ruled that  they were therefore discoverable as            ordinary  business records.   Accordingly, the court  did not            discuss  whether  work  product  protection  was   waived  by            disclosure to the audit agency.                                         -4-                                         -4-                 MIT  now appeals, arguing that disclosure of the billing            statements  to  the  audit  agency  should  not  forfeit  the            privilege; MIT no  longer claims work product  protection for            the billing  statements.  The  government has  cross-appealed            from the district court's refusal to order production  of the            three remaining minutes;  it says that the burden  was on MIT            to prove that the minutes had not been disclosed to the audit            agency.  MIT responds that  the privilege was not waived even            if the minutes  were disclosed to the audit  agency, and that            the minutes remain protected by the work product doctrine.                 On  an appeal respecting a privilege claim, the standard            of  review depends  on the  issue.   Rulings by  the district            court on  issues of law  are reviewed de novo;  fact findings                                                  _______            are  tested under a  clear error standard;  and discretionary            judgments  such as evidentiary rulings are reviewed for abuse            of discretion.   See United  States v. Wilson, 798  F.2d 509,                             ___ ______________    ______            512  (1st Cir.  1986).   On the  principal issue  before us--            forfeiture  by disclosure--this  case goes  about  as far  as            possible in  posing an  abstract issue of  law and  review is            plenary.                 The  question  whether   MIT  forfeited  protection   in            disclosing documents to  the audit agency is  not governed by            any  federal constitutional  provision,  federal statute,  or            rule prescribed by the Supreme Court.  Nor is the enforcement            of  an IRS summons  a matter with respect  to which state law                                         -5-                                         -5-            supplies a rule  of decision.  Accordingly, the  scope of the            privilege is "governed by the principles of the common law as            they may be interpreted by the courts of the United States in            the light of reason and experience."  Fed. R. Evid. 501.  See                                                                      ___            also United States v. Zolin, 491 U.S. 554, 562 (1989).            ____ _____________    _____                 MIT's  Appeal.     We  begin  with  the  attorney-client                 _____________            privilege.  That privilege has  been familiarly summed up  by            Wigmore in a formula that federal courts have often repeated:                      (1)   Where legal  advice of any  kind is                      sought  (2)  from  a  professional  legal                      adviser in his capacity as such,  (3) the                      communications relating to  that purpose,                      (4) made in confidence (5) by the client,                      (6)  are  at   his  instance  permanently                      protected (7) from  disclosure by himself                      or by the  legal adviser, (8) except  the                      protection be waived.            8 J. Wigmore, Evidence   2292, at 554 (McNaughton rev. 1961).                          ________            The government argues, and the district court agreed, that by            its disclosure to the audit agency, MIT  waived the privilege            to whatever extent that it might otherwise have protected the            billing statements and various of the minutes.                 The  attorney-client privilege  is well-established  and            its  present  rationale  straightforward:    by  safeguarding            communications  between  lawyer  and  client,  it  encourages            disclosures by client to lawyer that better enable the client            to conform his conduct to the requirements of the law and  to            present legitimate claims or defenses when litigation arises.            See Upjohn Co. v. United States, 449 U.S. 383, 389-90 (1981).            ___ __________    _____________                                         -6-                                         -6-            Waiver  issues aside,  the  contours  of  the  privilege  are            reasonably stable.                 Quite a different  scene presents itself when  one turns            to the problem of "waiver,"  a loose and misleading label for            what is in fact a  collection of different rules addressed to            different  problems.    Cases  under  this  "waiver"  heading            include situations as  divergent as an express  and voluntary            surrender  of   the  privilege,   partial  disclosure   of  a            privileged document, selective  disclosure to some  outsiders            but not  all,  and inadvertent  overhearings or  disclosures.            See McCormick on  Evidence   93, at 341-48  (J.W. Strong ed.,            ___ ______________________            4th ed. 1992).                 Even where  the cases are  limited to those  involving a            deliberate   and  voluntary   disclosure   of  a   privileged            communication to someone  other than the attorney  or client,            the case  law is far from settled.   But decisions do tend to            mark  out, although  not with  perfect  consistency, a  small            circle  of   "others"  with  whom information  may  be shared            without   loss   of   the   privilege   (e.g.,   secretaries,                                                     ____            interpreters,  counsel  for  a  cooperating  co-defendant,  a            parent present when a child consults a lawyer).1                                            ____________________                 1See, e.g., United States v. Bay State Ambulance & Hosp.                  ___  ____  _____________    ___________________________            Rental Serv., Inc.,  874 F.2d 20, 28 (1st  Cir. 1989); Kevlik            __________________                                     ______            v. Goldstein, 724  F.2d 844, 849 (1st Cir.  1984); Indian Law               _________                                       __________            Resource Center v.  Department of the Interior, 477  F. Supp.            _______________     __________________________            144, 148 (D.D.C. 1979); J. Weinstein & M. Berger, Weinstein's                                                              ___________            Federal Evidence    503.08[2], at 503-36 (J.  McLaughlin ed.,            ________________            2d ed. 1997).                                         -7-                                         -7-                 Although the decisions often describe such situations as            ones in which the client  "intended" the disclosure to remain            confidential, see, e.g.,  Kevlik v. Goldstein, 724  F.2d 844,                          ___  ____   ______    _________            849  (1st Cir. 1984),  the underlying concern  is functional:            that the lawyer be able to  consult with others needed in the            representation  and that  the  client  be  allowed  to  bring            closely  related persons  who are  appropriate,  even if  not            vital, to  a consultation.   Cf. Westinghouse Elec.  Corp. v.                                         ___ _________________________            Republic of the  Philippines, 951  F.2d 1414,  1424 (3d  Cir.            ____________________________            1991).  An  intent to maintain confidentiality  is ordinarily            necessary to continued protection, but it is not sufficient.                 On  the  contrary,  where the  client  chooses  to share            communications  outside this  magic circle,  the  courts have            usually  refused  to  extend the  privilege.2    The familiar            platitude  is that the privilege is narrowly confined because            it hinders the courts in the search for truth.  See Fisher v.                                                            ___ ______            United States, 425 U.S. 391,  403 (1976); 8 Wigmore, supra,              _____________                               _______  _____            2291, at 554.   Fairness is also a concern where  a client is            permitted to  choose to  disclose materials  to one  outsider            while  withholding them  from another.    See, e.g.,  Permian                                                      ___  ____   _______            Corp. v. United States, 665 F.2d 1214, 1221 (D.C. Cir. 1981).            _____    _____________                                            ____________________                 2In addition to the cases cited  in note 3 below, see In                                                                   ___ __            re Grand Jury Proceedings, 78  F.3d 251, 254 (6th Cir. 1996);            _________________________            United States v. Jones, 696  F.2d 1069, 1072 (4th Cir. 1982);            _____________    _____            In re Sealed Case, 676 F.2d 793,  818 (D.C. Cir. 1982); In re            _________________                                       _____            Horowitz, 482 F.2d  72, 81 (2d Cir.), cert.  denied, 414 U.S.            ________                              _____________            867 (1973); McCormick on Evidence, supra,   93, at 347-48.                        _____________________  _____                                         -8-                                         -8-                 Should  this  inclination  not  to  protect  a  document            disclosed  outside the  circle  apply  where,  as  here,  the            initial disclosure was to and  at the request of a government            agency?  This  problem has presented itself  to six circuits.            The  most common  cases have  been  disclosures of  otherwise            privileged attorney-client  communications to  the Securities            and  Exchange  Commission  by corporations  during  voluntary            internal investigations or in response to SEC subpoenas.  The            Eighth Circuit, en banc but  without more than a paragraph of                            _______            analysis, treated this kind of disclosure as not comprising a            total waiver of the privilege.   See Diversified Indus., Inc.                                             ___ ________________________            v. Meredith,  572 F.2d  596, 611 (8th  Cir. 1978)  (en banc).               ________            Subsequently,  the Second,  Third, Fourth,  Federal  and D.C.            Circuits  took the opposite view and  ruled that such limited            disclosures do destroy the privilege.3                 The  primary argument  in favor  of  the Eighth  Circuit            position  is that  loss of  the privilege may  discourage the            frank exchange between  attorney and client in  future cases,            wherever the  client anticipates  making a  disclosure to  at            least one government agency.  We put to one side the interest            of the government agency  in obtaining voluntary disclosures;                                            ____________________                 3See Genentech,  Inc. v. United States  Internat'l Trade                  ___ ________________    _______________________________            Comm'n,  122  F.3d  1409,  1417  (Fed.  Cir.  1997);   In  re            ______                                                 ______            Steinhardt  Partners, L.P., 9  F.3d 230, 235  (2d Cir. 1993);            __________________________            Westinghouse,  951 F.2d  at 1424-26;  In  re Martin  Marietta            ____________                          _______________________            Corp., 856  F.2d 619, 623-24  (4th Cir. 1988),  cert. denied,            _____                                           ____________            490 U.S. 1011 (1989); Permian, 665 F.2d at 1220-21.                                  _______                                         -9-                                         -9-            such  agencies usually have  means to secure  the information            they need  and, if not,  can seek legislation  from Congress.            By  contrast,   the  safeguarding   of  the   attorney-client            relationship has largely been left  to the courts, which have            a comparative  advantage in  assessing  consequences in  this            sphere.                 But MIT, like any client, continues to  control both the            nature  of its communications  with counsel and  the ultimate            decision  whether  to disclose  such communications  to third            parties.  The only constraint imposed by the traditional rule            here  invoked by the  government--that disclosure to  a third            party waives the privilege--is to limit selective disclosure,                                                    _________            that is, the provision of otherwise privileged communications            to one outsider while withholding them from another.  MIT has            provided  no evidence  that respecting  this constraint  will            prevent it or anyone else from getting adequate legal advice.                 Admittedly, the arguments on the other side are far from            overwhelming.   The IRS'  search for truth  will not  be much            advanced if MIT  simply limits or recasts its  disclosures to            the audit agency.  But  the general principle that disclosure            normally  negates the  privilege is  worth  maintaining.   To            maintain it here makes the law more predictable and certainly            eases  its  administration.   Following the  Eighth Circuit's            approach  would require,  at the  very  least, a  new set  of                                         -10-                                         -10-            difficult line-drawing exercises that  would consume time and            increase uncertainty.                 MIT says that even if we are not  prepared to follow the            Eighth Circuit onto new ground, MIT's disclosure to the audit            agency  should be  regarded as  akin to  the disclosure  by a            client's lawyer to another lawyer representing another client            engaged in a common defense.  Invoking the concept of "common            interest," MIT  seeks to compare its situation to cases where            disclosure   has   been  allowed,   without   forfeiting  the            privilege, among separate parties similarly aligned in a case            or  consultation (e.g.,  codefendants,  insurer and  insured,                              ____            patentee and licensee).4                 In a rather abstract sense,  MIT and the audit agency do            have  a "common interest" in the  proper performance of MIT's            defense  contracts and  the proper  auditing  and payment  of            MIT's bills.  But this is not the kind of common  interest to            which the  cases refer in recognizing that allied lawyers and            clients--who are working together in prosecuting or defending            a   lawsuit  or  in  certain  other  legal  transactions--can            exchange  information among  themselves without  loss  of the                                            ____________________                 4Compare In re  Regents of Univ. of Cal.  101 F.3d 1386,                  _______ _______________________________            1390-91  (Fed. Cir.  1996),  cert. denied,  117  S. Ct.  1484                                         ____________            (1997), and Hewlett-Packard  Co. v. Bausch &  Lomb, Inc., 115                    ___ ____________________    ____________________            F.R.D.  308,  310 (N.D.  Cal. 1987),  and Roberts  v. Carrier                                                  ___ _______     _______            Corp., 107  F.R.D. 678, 687-88  (N.D. Ind. 1985), with  In re            _____                                             ____  _____            Grand  Jury Subpoena Duces  Tecum, 112 F.3d  910, 922-23 (8th            _________________________________            Cir.), cert.  denied,  117  S. Ct.  2482  (1997),  and  Linde                   _____________                               ___  _____            Thomson Langworthy Kohn & Van Dyke, P.C., v. Resolution Trust            ________________________________________     ________________            Corp., 5 F.3d 1508, 1515 (D.C. Cir. 1993).            _____                                         -11-                                         -11-            privilege.  To  extend the notion to MIT's  relationship with            the   audit  agency,  which   on  another  level   is  easily            characterized  as  adversarial,  would  be  to  dissolve  the            boundary almost entirely.                 MIT  further argues  that the  disclosure  to the  audit            agency was not "voluntary" because of the practical pressures            and  the legal  constraints  to  which it  was  subject as  a            government contractor.   The  extent of  those pressures  and            constraints  is far from  clear,5 but assuming  arguendo that                                                            ________            they existed, MIT  chose to place itself in  this position by            becoming a government contractor.  In short, MIT's disclosure            to the  audit agency resulted from its  own voluntary choice,            even if that choice was made at the time it became  a defense            contractor  and subjected itself to the alleged obligation of            disclosure.  See In re John Doe  Corp., 675 F.2d 482, 489 (2d                         ___ _____________________            Cir. 1982).                 Anyone  who chooses to disclose a privileged document to            a third  party, or does so  pursuant to a  prior agreement or            understanding, has an incentive to do so, whether for gain or            to avoid  disadvantage.   It would  be perfectly  possible to            carve out some  of those disclosures  and say that,  although            the  disclosure itself is  not necessary to  foster attorney-                                            ____________________                 5MIT's main citation for its  duty to disclose is not to            a statute or regulation but to a procedures manual maintained            by  the audit agency.   There is no  actual evidence that MIT            would have been denied payment  if it had sought to negotiate            some lesser disclosure.                                         -12-                                         -12-            client communications, neither does it forfeit the privilege.            With rare  exceptions, courts  have been  unwilling to  start            down this path--which has no logical terminus--and we join in            this reluctance.                 We add, finally, a word about reliance and fair warning.            MIT  may have had some reason  to think that the audit agency            would not disclose  the documents to the IRS  (and the agency            did not do so).  But MIT had far less reason to think that it            could  disclose documents  to  the  audit  agency  and  still            maintain   the  privilege  when  IRS  then  sought  the  same            documents.  See  note 3, above.   The choice to disclose  may                        ___            have been reasonable but it was still a foreseeable gamble.                 The IRS Appeal.  We  turn now to the government's cross-                 ______________            appeal.   Here,  the  IRS  challenges  the  district  court's            refusal to  require MIT  to produce  three specific  minutes.            The  refusal reflected  the district  court's  view that  the            documents  contained privileged material,  and that there was            no waiver  because MIT had  not been shown to  have disclosed            those minutes to the audit agency.   On the latter point, MIT            effectively concedes error, and properly so.                 Where  privilege is claimed  and the opponent  alleges a            specific disclosure, the burden of proof is upon the claimant            to  show nondisclosure  wherever  that  is  material  to  the            disposition of the  claim.  Cf. United States  v. Wilson, 798                                        ___ _____________     ______            F.2d 509, 512-13 (1st Cir. 1986).  Here, MIT concedes that it                                         -13-                                         -13-            cannot  prove that the minutes in question were withheld from            the audit agency.   Instead, it proffers  alternative grounds            for  sustaining the  district court's  judgment  as to  these            minutes,  namely, that the  minutes were protected  under the            attorney-client privilege and  the work product  doctrine and            that  these protections  were  not  waived  even  though  the            minutes were turned over to the audit agency.                  A  party may  defend  a  judgment in  its  favor on  any            legitimate ground without appealing from the judgment on that            issue.   Martin v.  Tango's Restaurant, Inc.,  969 F.2d 1319,                     ______     ________________________            1325  (1st  Cir.  1992).    Our  discussion  of  the  billing            statements  disposes of MIT's argument that the protection of            the  attorney-client  privilege  survived disclosure  to  the            audit  agency.    We  therefore  turn  to  the  work  product            doctrine.  In doing so, we reject the government's claim that            MIT waived this  work product argument by only  raising it in            its  reply brief;  MIT's "reply"  brief  was effectively  its            answering brief  on the  government's cross  appeal, and  the            government filed its own "reply" in turn.                 The district  court assumed that work product protection            did  not  apply because  the  minutes were  not  prepared "in            anticipation of litigation,"  as required by Fed.  R. Civ. P.            26(b)(3).   MIT argues that the minutes contained substantive            information  that did represent attorney work product even if            the minutes had a more general function.  There is little law                                         -14-                                         -14-            in  this area--partly,  one  suspects,  because work  product            usually remains embodied in documents unquestionably prepared            for  litigation  or, if  given  to the  client,  in documents            independently protected by the attorney client privilege.                   The  government has chosen in its  brief to assume that,            to   the  extent  that  the  minutes  contained  "the  mental            impressions,  conclusions, opinions,  or  legal theories"  of            MIT's attorneys,   Fed.  R. Civ.  P.  26(b)(3), the  district            court   erred  in  concluding  that  work  product  lost  its            protection when repeated in another confidential document not            prepared  in anticipation  of litigation.    A Third  Circuit            precedent supports this assumption, which MIT presses and the            government does not resist.   See In re  Ford Motor Co.,  110                                          ___ _____________________            F.3d  954, 967 (3d  Cir. 1997).  In  view of the government's            concession, we will take the  point as settled for this case.                 Nevertheless,  the  government  claims  that  any   such            protection was lost when the  minutes were turned over to the            audit agency, MIT  having conceded that it cannot  prove that            the minutes were not so disclosed.  One might wonder  why the            standard of  waiver for  the attorney-client  privilege--that            any voluntary disclosure outside the magic circle constitutes            waiver--would  not also apply  to the work  product doctrine.            Equivalent waiver standards would make easier  the resolution                                         -15-                                         -15-            of  evidentiary disputes  where, as  often  happens, the  two            objections are raised together.                   Nonetheless, the cases  approach uniformity in  implying            that work-product protection  is not as easily  waived as the            attorney-client privilege.   The  privilege, it  is said,  is            designed to protect confidentiality,  so that any  disclosure            outside  the magic circle is inconsistent with the privilege;            by  contrast, work  product  protection  is provided  against            "adversaries,"  so  only   disclosing  material   in  a   way            inconsistent  with keeping it  from an adversary  waives work            product protection.  At least five circuits have adopted this            rule  in some form.6   See also 8  C. Wright, A.  Miller & R.                                   ________            Marcus,  Federal Practice  and Procedure     2024, at  368-69                     _______________________________            (1994) (citing cases).                 Perhaps such formulations  simply beg the question.   If            one  wanted to explain  the discrepant outcomes,  it might be            more  persuasive  to  say  that  the  privilege  is  strictly            confined  because  it is  absolute; on  the other  hand, work            product  protection  (with  certain  qualifications)  can  be            overcome by  a sufficient showing of need.   See Fed. R. Civ.                                                         ___            P. 26(b)(3).  In all events, it would take better reason than                                            ____________________                 6See  Westinghouse,  951  F.2d  at  1428-29;  Steinhardt                  ___  ____________                            __________            Partners, 9 F.3d at 234-35;  In re Subpoenas Duces Tecum, 738            ________                     ___________________________            F.2d 1367, 1371-75  (D.C. Cir. 1984); Martin  Marietta Corp.,                                                  ______________________            856 F.2d  at  625;  In re  Chrysler  Motors  Corp.  Overnight                                _________________________________________            Evaluation Program  Litig., 860  F.2d 844,  846-47 (8th  Cir.            __________________________            1988).                                         -16-                                         -16-            we have to depart from the prevailing rule that disclosure to            an  adversary,  real  or  potential,  forfeits  work  product            protection.                 MIT's disclosure to the audit agency was a disclosure to            a potential adversary.  The disclosures did not take place in            the context of a joint  litigation where the parties shared a            common legal interest.  The audit agency  was reviewing MIT's            expense submissions.  MIT doubtless hoped that there would be            no  actual controversy  between  it  and  the  Department  of            Defense,  but the potential  for dispute and  even litigation            was certainly there.   The cases treat this  situation as one            in which the work product protection is deemed forfeit.  See,                                                                     ____            e.g., Steinhardt Partners,  9 F.3d at 234;  Westinghouse, 951            ____  ___________________                   ____________            F.2d at  1428-31; In  re Subpoenas Duces  Tecum, 738  F.2d at                              _____________________________            1372 (D.C. Cir. 1984).                 In  closing,  it  may be  helpful  to  stress that--with            regard to  both the  attorney-client privilege  and the  work            product doctrin                      ine--we are concerned only with loss of  protection            as to  the  very documents  already  disclosed to  the  audit            agency.  Nothing  in this opinion is intended  to be directed            to  the different and  difficult question when  disclosure of            one  document   warrants  forfeiture  of  protection   for  a            different but related document.  That issue was touched on in            the district court but has not been pursued on appeal.                                         -17-                                         -17-                 Similarly, even  where work  product can  be discovered,            the  governing rule  directs that  "the  court shall  protect            against disclosure  of the  mental impressions,  conclusions,            opinions,  or  legal   theories  of  an  attorney   or  other            representative of a  party concerning the litigation."   Fed.            R.   Civ.  P.  26(b)(3).    Conceivably,  the  strong  policy            underlying  this  reservation  might serve  to  protect  such            materials,  even  if  protection  of  ordinary  work  product            materials were deemed waived because of selective disclosure.            This possibility has not been briefed or argued to us; it may            or may not  be pertinent in this case; and we mention it only            to stress that we are not deciding the issue.                 Accordingly,  on  MIT's  appeal,  the  judgment  of  the            district  court  is  affirmed.   On  the  government's cross-                                 ________            appeal, the judgment  of the district court refusing to order            production of  three specified  minutes is  vacated, and  the                                                        _______            matter   is  remanded  to  the  district  court  for  further                         ________            proceedings consistent with this opinion.                 It is so ordered.                 ________________                                         -18-                                         -18-
