FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Petitioner-Appellee,

v.

SANMINA CORPORATION AND 

SUBSIDIARIES,

Respondent-Appellant.

No. 18-17036

D.C. No.

3:15-cv-00092-

WHA

OPINION

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted February 11, 2020

San Francisco, California

Filed August 7, 2020

Before: Johnnie B. Rawlinson and Consuelo M. Callahan, 

Circuit Judges, and Susan R. Bolton,* District Judge.

Opinion by Judge Callahan

* The Honorable Susan R. Bolton, United States District Judge for 

the District of Arizona, sitting by designation.
2 UNITED STATES V. SANMINA CORP.

SUMMARY**

Tax

The panel affirmed in part and reversed in part the 

district court’s determination, that taxpayer Sanmina 

Corporation had waived attorney-client privilege and workproduct protection for certain memoranda prepared in 

support of a worthless stock deduction on Sanmina’s federal 

tax return, in a petition by the Internal Revenue Service to 

enforce a summons for those memoranda.

The memoranda in question (Attorney Memos) were 

authored by Sanmina’s in-house counsel and referenced in a 

valuation report prepared by DLA Piper (DLA Piper Report) 

in support of the worthless stock deduction. The district 

court initially denied enforcement of the summons. This 

court remanded for in camera review of the Attorney 

Memos. On remand, the district court determined that the 

Attorney Memos were covered by both attorney-client 

privilege and work-product protection, but that those 

privileges had been waived. On appeal, the parties did not 

dispute that the Attorney Memos were privileged.

The panel first held that Sanmina expressly waived the 

attorney-client privilege when it disclosed the Attorney 

Memos to DLA Piper. The panel next held that Sanmina did 

not expressly waive work-product immunity merely by 

providing the Attorney Memos to DLA Piper, but it 

impliedly waived the privilege when it subsequently used the 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SANMINA CORP. 3

DLA Piper Report to support its tax deduction in an IRS 

audit, because such use was inconsistent with the 

maintenance of secrecy against its adversary. The panel 

ordered disclosure of only the factual content of the Attorney 

Memos on which the DLA Piper Report relies, and 

remanded for the district court to determine the specific 

portions of the Attorney Memos that should be disclosed to 

the IRS.

COUNSEL

Michael C. Lieb (argued) and Leemore L. Kushner, Ervin 

Cohen & Jessup LLP, Beverly Hills, California, for 

Respondent-Appellant.

Bethany B. Hauser (argued) and Deborah K. Snyder, 

Attorneys; Richard E. Zuckerman, Principal Deputy 

Assistant Attorney General; Tax Division, United States 

Department of Justice, Washington, D.C.; for PetitionerAppellee.
4 UNITED STATES V. SANMINA CORP.

OPINION

CALLAHAN, Circuit Judge:

Sanmina Corporation (“Sanmina”) claimed a worthless 

stock deduction on its federal tax return, which triggered an 

audit by the United States Internal Revenue Service (“IRS”) 

of Sanmina’s tax returns. To support the deduction, 

Sanmina provided to the IRS a valuation report that had been 

prepared by DLA Piper, LLP, which in turn cited two 

memoranda authored by Sanmina in-house counsel. The 

IRS issued a summons for the memoranda, and Sanmina 

objected on the basis that they were protected both by 

attorney-client privilege and the attorney work-product 

doctrine.

After the district court initially denied enforcement of the 

summons, the IRS appealed to this court. We remanded for 

in camera review of the memoranda but retained jurisdiction 

over the appeal. United States v. Sanmina, 707 F. App’x 865 

(9th Cir. 2017). On remand, the district court determined 

that the memoranda were covered by both attorney-client 

privilege and work-product protection, but that those 

privileges had been waived.

We affirm in part and reverse in part the district court’s 

findings. We agree that Sanmina’s disclosure of the 

memoranda to DLA Piper waived the attorney-client 

privilege. However, such disclosure did not waive their 

work-product protection, except for the factual content of the 

memoranda. Accordingly, we grant in part and deny in part 

the IRS’s enforcement petition, and remand to the district 

court to issue a disclosure order consistent with this opinion.
UNITED STATES V. SANMINA CORP. 5

I.

In its federal tax return, Sanmina claimed a worthless 

stock deduction arising from its ownership of shares of stock 

in a Swiss subsidiary, Sanmina International AG (“Sanmina 

AG,” also referred to internally as “Swiss-3600”). The 

deduction totaled $503 million and offset all of Sanmina’s 

taxable income for the 2008 tax year, with carryforward 

losses. The IRS subsequently initiated an examination of 

Sanmina’s federal income tax liabilities of Sanmina 

Corporation and subsidiaries for the 2008, 2009, and 2010 

taxable periods.

To support the worthless stock deduction, Sanmina 

provided the IRS with a valuation report prepared by DLA 

Piper (the “DLA Piper Report”), which referred to two 

memoranda authored by Sanmina’s in-house counsel (the 

“Attorney Memos”) in a footnote of the report. The IRS then 

issued a summons for the Attorney Memos. In response, 

Sanmina declined to produce the memoranda, invoking 

attorney-client privilege and attorney work-product 

protection. However, Sanmina agreed to disclose to the IRS 

the “non-privileged documents on which the analyses 

contained in the [Attorney Memos] are based.”

A.

The DLA Piper Report is 102 pages and titled on the 

cover page as “Sanmina-SCI Corporation – Estimate of Fair 

Market Value of Sanmina International AG – Valuation as 

of June 30, 2009.” Each page contains the label “AttorneyClient Privilege – Confidential Draft.” The report begins 

with a two-page letter, which is addressed to Sanmina’s inhouse counsel, and signed by a DLA Piper partner and 

economist. It states in part:
6 UNITED STATES V. SANMINA CORP.

DLA Piper . . . has concluded a fair market 

value (“FMV”) analysis supporting your 

assessment of insolvency of Sanmina 

International AG . . . . We understand our 

summary report will be used solely for tax 

compliance purposes, specifically for 

confirming the worthlessness of Sanmina 

International AG’s common shares. Our 

estimate of value does not constitute a 

fairness opinion or an estimate of FMV for 

any other purpose and should not be relied 

upon as such.

The two-page letter concludes: “Based on a combination of 

DCF and ANA analyses, we estimate the FMV of a 

marketable, controlling interest in Sanmina AG to be a 

negative US$49 million as of the Valuation Date. The value 

of Subject Company’s cumulative liabilities therefore 

exceeded the value of its assets by US$49 million.”

In the report’s Executive Summary, a section headlined 

“Nature of Engagement” states:

Sanmina . . . has asked DLA Piper . . . to 

provide an estimate of the fair market value 

(“FMV”) of 100 percent of the common stock 

of its wholly-owned subsidiary . . . . as of 

June 30, 2009 (“Valuation Date”). We 

understand that this analysis will be used by 

Sanmina’s management (“Management”) to 

make a determination of value on liquidation 

of Subject Company as of the Valuation Date 

in the context of a restructuring of Sanmina’s 

international operations. In this content [sic], 

it is Management’s intent to assess whether 
UNITED STATES V. SANMINA CORP. 7

Sanmina AG’s common stock as of the 

Valuation Data [sic] was worthless. 

Furthermore, it is our understanding that 

Sanmina will not disclose our analysis to 

third parties other than its financial auditors 

and interested tax authorities without our 

expressed written consent.

The footnote referencing the Attorney Memos is found 

on page 56 of the report within the following paragraph:

We believed that the book value of each 

liability provides the best estimation of its 

FMV. However, based on interviews with 

Management and related documents 

provided by Management,6 we concluded 

that the intercompany loan between Sanmina 

Holding AB and Sanmina Kista (about 

US$ 90 million) as well as the intercompany 

non-trade receivable between Sanmina-SCI 

and Sanmina AG [i.e., Swiss 3600] (about 

US$ 113 million) should be disregarded.

In the text of footnote 6 above, three documents are listed 

without further explanation: (1) “Memo draft: Stock and 

Debt Losses on Swiss-3600, March 11, 2009”; (2) “Capital 

Contribution Agreement between Sanmina-SCI Corporation 

and Sanmina International AG, July 3, 2006; and 

(3) “Memo: Guarantee and Capital Contribution Agreement 

Concerning Sanmina International AG, July 2, 2006.” The 

first and third documents listed are the Attorney Memos at 

issue in this case.
8 UNITED STATES V. SANMINA CORP.

B.

The Attorney Memos are described by Sanmina’s inhouse counsel as follows:

The 2006 Attorney Memo is a memorandum 

dated July 2, 2006 from a former Sanmina tax 

department attorney named Chris Croudace 

to “File.” The memorandum discusses the 

legal analysis supporting the execution of 

certain agreements among Sanmina and its 

subsidiaries, including the reason for those 

agreements, their legal enforceability, and 

their tax treatment. The memorandum 

includes citations to, and analysis of certain 

IRS letter rulings and two tax court decisions.

. . . The 2009 Attorney Memo is a draft 

memorandum dated March 11, 2009. The 

name of the author is not apparent from the 

face of the document, but I was able to 

ascertain that the author is Mark L. Johnson, 

a former Sanmina tax department lawyer. 

Each page of the document bears the notation 

“Confidential – Work Product Privilege.” 

The 2009 Attorney Memo analyzes the tax 

effect of the liquidation of “Swiss-3600,” 

which is Sanmina’s internal designation for 

Sanmina International AG. The 2009 

Attorney Memo contains a factual discussion 

and the bulk of the memo consists of a legal 

analysis of those facts and their effect on the 

liquidation of Swiss-3600. It cites IRS 

revenue rulings, tax code provisions, tax 
UNITED STATES V. SANMINA CORP. 9

court decisions, and a decision of the U.S. 

Supreme Court.

A privilege log produced by Sanmina demonstrates that the 

Attorney Memos were shared outside of Sanmina only with 

Ernst & Young, KPMG, LLP, and DLA Piper. Sanmina’s 

Director of Tax Controversy and Tactical Support, Brian 

Dulkie, explains in an affidavit that the Attorney Memos 

were “were provided to Ernst & Young . . . and KPMG to 

support Sanmina’s taking of a worthless stock deduction” 

and both those firms “provided tax advice related to 

Sanmina’s decision to take the worthless stock.” According 

to Dulkie:

Given the significance of that tax treatment, 

Sanmina proceeded with the expectation that 

IRS would likely call upon Sanmina to 

defend the worthless stock deduction. 

Anticipating the possibility that the Service 

might adopt an adverse position, Sanmina 

sought advice from DLA Piper, Ernst & 

Young and KPMG concerning the propriety 

of the deduction.

C.

In January 2015, the IRS filed a petition to enforce the 

summons for the Attorney Memos, and the district court 

issued an order to show cause to Sanmina. After briefing 

from the parties and a hearing, the district court (Magistrate 

Judge Paul S. Grewal) issued an order denying enforcement 

of the summons, finding that the memoranda were privileged 

and that the privileges were not waived. The IRS appealed.

In December 2017, a panel of this court remanded the 

case “for the district court to review the 2006 and 2009 
10 UNITED STATES V. SANMINA CORP.

memos in camera to determine whether the documents 

requested by the government are privileged to any degree” 

and “retain[ed] jurisdiction over this appeal.” Sanmina, 

707 F. App’x at 866. In June 2018, after some dispute 

between the parties regarding the scope of the remand and a 

request for clarification from the district court, this court 

issued another order defining the scope of remand as: 

(1) whether the memoranda are privileged in the first 

instance and (2) whether such privilege was waived.

D.

On remand, the district court (Judge William H. Alsup) 

issued an order that affirmed “Judge Grewal’s finding that 

the memoranda are protected by the attorney-client privilege 

and attorney work-product doctrine,” but found that the 

privileges were “waived when Sanmina disclosed the 

memoranda to DLA Piper to obtain an opinion on value, then 

turned over the valuation report to the IRS.” Based on its in 

camera review of the memoranda, the court found that they 

were protected both by (1) attorney-client privilege because 

“Sanmina sufficiently showed that the memoranda were 

prepared by in-house counsel, in response to a request for 

legal advice, and contain legal advice communicated in 

confidence to Sanmina executives” and (2) attorney workproduct doctrine because “while there was no pending 

litigation when the memoranda were drafted, Sanmina 

reasonably anticipated that the IRS would scrutinize its 

$503 million stock deduction, so it engaged in-house 

counsel to analyze the consequences of taking such a 

deduction.”

As to waiver, the district court concluded:

Any attorney-client privilege that might have 

attached to the memoranda was waived when 
UNITED STATES V. SANMINA CORP. 11

Sanmina voluntarily disclosed the 

memoranda to DLA Piper, not for the 

purpose of receiving legal advice, but for the 

purpose of determining the value of Sanmina 

AG’s common stock. Sanmina engaged 

DLA Piper for the purpose of conducting a 

fair market value analysis to be used for tax 

compliance reasons. Anticipating that the 

IRS would adopt an “adverse position” to 

taking a $500 million deduction, Sanmina 

sought DLA Piper’s services in producing the 

valuation report. Thus, the point of waiver 

took place when Sanmina provided the 

privileged memoranda to DLA Piper for the 

purpose of producing a valuation report to 

then turn over to the IRS. Sanmina cannot 

disclose a privileged attorney communication 

relevant to an issue of material fact, then 

invoke privilege to shield that 

communication from discovery.

The district court did not conduct a separate analysis for 

waiver of work-product protection apart from its discussion 

of waiver for attorney-client privilege but relied on Weil v. 

Investment/Indicators, Research & Management, Inc., 

647 F.2d 18 (9th Cir. 1981), as “the controlling decision in 

our circuit” for both issues.

Although its conclusion that waiver occurred when 

Sanmina disclosed the Attorney Memos to DLA Piper was 

“dispositive” of the waiver question, the district court also 

alternatively held that “Sanmina’s disclosure of the DLA 

Piper valuation report to the IRS waived any applicable 

privilege as to materials used to reach the valuation.” Citing 

Fed. R. Evid. § 502(a)(3), the district court reasoned that 
12 UNITED STATES V. SANMINA CORP.

because “DLA Piper’s valuation report relied on the contents 

of the memoranda” and “based its conclusions, at least in 

part, on the two memoranda at issue,” “[t]he analyses that 

informed the valuation report’s conclusions should, in 

fairness, be considered together.” The court rejected 

Sanmina’s argument “that the footnote merely disclosing the 

existence of the memoranda did not waive any applicable 

privilege as to their entire contents,” reiterating that “it 

would be fundamentally unfair for Sanmina to disclose the 

valuation report while withholding its foundation.”

II.

The district court found—and the parties do not 

dispute—that the Attorney Memos constituted both 

privileged attorney-client communications and protected 

attorney work product. Thus, the only issue before us is the 

question of waiver—specifically, whether Sanmina waived 

attorney-client privilege or work-product protection by 

providing the memoranda to DLA Piper and providing the 

DLA Piper Report to the IRS. Because the Attorney Memos 

constitute attorney-client communications and protected 

attorney work product, we must find that Sanmina waived 

both privileges to mandate disclosure of the memoranda.

Whether a privilege has been waived is a mixed question 

of fact and law that we review de novo. United States v. 

Plache, 913 F.2d 1375, 1379 (9th Cir. 1990); United States 

v. Mendelsohn, 896 F.2d 1183, 1188 (9th Cir. 1990). We 

review for clear error a district court’s factual findings for 

attorney-client privilege and work-product doctrine. See 

United States v. Richey, 632 F.3d 559, 563–64 (9th Cir. 

2011). “A finding is clearly erroneous if it is illogical, 

implausible, or without support in the record.” United States 

v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010).
UNITED STATES V. SANMINA CORP. 13

III.

A.

The attorney-client privilege protects confidential 

communications between attorneys and clients, which are 

made for the purpose of giving legal advice. Upjohn Co. v. 

United States, 449 U.S. 383, 389 (1981). Whether 

information is covered by the attorney-client privilege is 

determined by an eight-part test:

(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) unless the protection be waived.

Graf, 610 F.3d at 1156.

“The attorney-client privilege may extend to 

communications with third parties who have been engaged 

to assist the attorney in providing legal advice,” Richey, 

632 F.3d at 566, as well as to communications with third 

parties “acting as agent” of the client. United States v. 

Landof, 591 F.2d 36, 39 (9th Cir. 1978). “If the advice 

sought is not legal advice, but, for example, accounting 

advice from an accountant, then the privilege does not exist.” 

Richey, 632 F.3d at 566 (citation omitted). Thus, we have 

recognized several contexts in which communications with 

attorneys for the purpose of non-legal advice are not 
14 UNITED STATES V. SANMINA CORP.

privileged.1 In general, however, “[i]f a person hires a 

lawyer for advice, there is a rebuttable presumption that the 

lawyer is hired ‘as such’ to give ‘legal advice,’ whether the 

subject of the advice is criminal or civil, business, tort, 

domestic relations, or anything else.” United States v. Chen, 

99 F.3d 1495, 1501 (9th Cir. 1996). This “presumption is 

rebutted when the facts show that the lawyer was ‘employed 

without reference to his knowledge and discretion in the 

law.’” Id.

There are “several ways by which parties may waive the 

privilege.” In re Pac. Pictures Corp., 679 F.3d 1121, 1126 

(9th Cir. 2012) (citations omitted). First, “voluntarily 

disclosing privileged documents to third parties will 

generally destroy the privilege.” Id. at 1126–27. Also 

known as an “express waiver,” this type of waiver “occurs 

when a party discloses privileged information to a third party 

who is not bound by the privilege, or otherwise shows 

disregard for the privilege by making the information 

public.” Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 

2003). “Disclosures that effect an express waiver are 

typically within the full control of the party holding the

privilege; courts have no role in encouraging or forcing the 

1 See, e.g., United States v. Rowe, 96 F.3d 1294, 1297 (9th Cir. 1996) 

(noting “[w]here the attorney was asked for business (as opposed to 

legal) counsel, no privilege attached,” but “fact-finding which pertains 

to legal advice counts as ‘professional legal services’” (citations 

omitted)); United States v. Huberts, 637 F.2d 630, 640 (9th Cir. 1980) 

(“Generally, an attorney who serves as a business agent to a client may 

not assert the attorney-client privilege, because no confidential 

relationship attaches.”); see also Harris v. United States, 413 F.2d 316, 

320 (9th Cir. 1969) (applying “the general rule that ministerial or clerical 

services performed by an attorney are not within the privilege”).
UNITED STATES V. SANMINA CORP. 15

disclosure—they merely recognize the waiver after it has 

occurred.” Id.

In contrast, waiver by implication, or implied waiver, is 

based on the rule that “a litigant waives the attorney-client 

privilege by putting the lawyer’s performance at issue during 

the course of litigation.” Id. at 718; see also Weil, 647 F.2d 

at 24 (“[T]he federal cases presuppose that waiver may be 

effected by implication.”). Waivers by implication rest on 

the “fairness principle,” which

is often expressed in terms of preventing a 

party from using the privilege as both a shield 

and a sword. . . . In practical terms, this 

means that parties in litigation may not abuse 

the privilege by asserting claims the opposing 

party cannot adequately dispute unless it has 

access to the privileged materials.

Bittaker, 331 F.3d at 719 (citation omitted).

This fairness principle also animates the concept of 

subject matter waiver, in which “voluntary disclosure of the 

content of a privileged attorney communication constitutes 

waiver of the privilege as to all other such communications 

on the same subject.” Weil, 647 F.2d at 24; see also Plache, 

913 F.2d at 1380 (finding disclosure of a privileged 

communication waived the privilege “on all other 

communications on the same subject”). Under this rule, 

“disclosure of information resulting in the waiver of the 

attorney-client privilege constitutes waiver ‘only as to 

communications about the matter actually disclosed.’” 

Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th 

Cir. 1992) (quoting Weil, 647 F.2d at 25)); see also

Mendelsohn, 896 F.2d at 1189 (affirming decision confining 

testimony based on waiver to the subject of the waiver).
16 UNITED STATES V. SANMINA CORP.

B.

Whether Sanmina expressly waived the attorney-client 

privilege over the Attorney Memos by voluntarily disclosing 

them to DLA Piper turns chiefly on whether Sanmina shared 

the memoranda with DLA Piper for the purpose of obtaining 

legal advice. If Sanmina did not engage DLA Piper for its 

legal services, as the district court found, then DLA Piper 

was properly treated as a third party for the purposes of 

attorney-client privilege, and Sanmina’s disclosure of the 

memos to DLA Piper expressly waived the privilege. On the 

other hand, if Sanmina shared the memoranda with DLA 

Piper in order to secure legal advice, as Sanmina asserts, then 

these privileged communications were maintained within a 

confidential relationship between Sanmina and DLA Piper.

In finding that Sanmina disclosed the Attorney Memos 

to DLA Piper for a non-legal purpose, the district court 

reasonably relied on language from the DLA Piper Report 

and Dulkie’s statement indicating that “Sanmina engaged 

DLA Piper for the purpose of conducting a fair market value 

analysis to be used for tax compliance reasons” and “sought 

DLA Piper’s services in producing the valuation report.” 

These same evidentiary sources, however, also provide 

inferential support for Sanmina’s claim that it engaged DLA 

Piper as outside tax counsel and shared the privileged 

memoranda for the purpose of obtaining DLA Piper’s legal 

advice. For instance, Dulkie’s statement that “Sanmina 

sought advice from DLA Piper . . . concerning the propriety 

of the [tax] deduction” after “[a]nticipating that the [IRS] 

might adopt an adverse position” could reasonably support 

the conclusion that the advice Sanmina sought from DLA 

Piper regarding the propriety of its tax deduction was legal 
UNITED STATES V. SANMINA CORP. 17

in nature.2 The DLA Piper Report also provides some 

indications of an attorney-client relationship, or at least an 

expectation of attorney-client confidentiality, between DLA 

Piper and Sanmina.3

Viewed in its entirety, the record might suggest that 

Sanmina shared the Attorney Memos with DLA Piper for the 

purpose of seeking both legal and non-legal advice 

pertaining to the propriety of its tax deduction. 

Communications made for such a “dual purpose” are not 

uncommon in the tax law context, where an attorney’s 

advice may integrally involve both legal and non-legal 

analyses.4 While our court has not yet addressed how to 

2 While Dulkie does not explicitly describe the advice sought as 

“legal,” such an inference would not be unreasonable given the 

undisputed fact that DLA Piper is a law firm, which comes with a 

“rebuttable presumption” that the firm was engaged for its legal 

knowledge. See Chen, 99 F.3d at 1502 (stating that where “attorneys 

were employed for their legal knowledge, to bring their clients into 

compliance with the law . . . [t]heir communications with their clients 

were . . . within the scope of the attorney-client privilege”).

3 For instance, the cover letter of the DLA Piper Report was 

addressed to Sanmina’s in-house counsel and stated that DLA Piper had 

conducted a valuation analysis “supporting your assessment of 

insolvency of Sanmina International AG,” which could be interpreted as 

evidence that Sanmina engaged DLA Piper to review and verify its inhouse legal analysis on the insolvency of its subsidiary and its potential 

tax implications. The report was also signed, in part, by a firm attorney 

and contains “attorney-client privilege” warnings on each page, which 

could indicate an understanding between DLA Piper and Sanmina that 

its shared documents and communications were covered by attorneyclient confidentiality.

4 See 1 Paul R. Rice, Attorney-Client Privilege in the United States

§ 7:4 (2019) (“In a broad range of areas (e.g., tax, commercial, patent, 

criminal, or litigation and its avoidance), ‘legal’ assistance often involves 
18 UNITED STATES V. SANMINA CORP.

assess when a “dual purpose” communication remains 

within the privilege, we recognize that district courts in our 

circuit have grappled with this question and differed in 

regard to the proper test to apply.5 Notwithstanding this 

intra-circuit split, however, we need not decide the issue on 

the facts of this case. Despite some evidence that Sanmina 

may have had a “dual purpose” for sharing the Attorney 

Memos to DLA Piper, the district court’s finding that 

Sanmina’s purpose was to obtain a non-legal valuation 

many non-legal, complementary services.”); United States v. Cote, 

456 F.2d 142, 144 (8th Cir. 1972) (holding that an accountant’s work 

papers used by the attorney in advising client were privileged where the 

attorney’s “decision as to whether the taxpayers should file an amended 

return undoubtedly involved legal considerations which mathematical 

calculations alone would not provide” and “the accountant’s aid to the 

lawyer preceded the advice and was an integral part of it.”); In re Grand 

Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1037 

(2d Cir. 1984) (“Tax advice rendered by an attorney is legal advice 

within the ambit of the privilege.”).

5 Some district courts have applied a “primary purpose” test. See, 

e.g., Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 628 (D. Nev. 2013); 

U.S. v. Salyer, 853 F. Supp. 2d 1014, 1018 (E.D. Cal. 2012); Premiere 

Digital Access, Inc. v. Central Telephone Co., 360 F. Supp. 2d 1168, 

1174 (D. Nev. 2005); United States v. ChevronTexaco Corp., 241 F.

Supp. 2d 1065, 1076 (N.D. Cal. 2002). Other courts have transported 

the “because of” test from the work-product context, and looked to “the 

totality of the circumstances” to determine “the extent to which the 

communication solicits or provides legal advice or functions to facilitate 

the solicitation or provision of legal advice.” See In re CV Therapeutics, 

Inc. Sec. Litig., No. C-03-3709 SI(EMC), 2006 WL 1699536, at *3–4 

(N.D. Cal. June 16, 2006); Visa U.S.A., Inc. v. First Data Corp., No. C02-1786JSW(EMC), 2004 WL 1878209, at *4 (N.D. Cal. Aug. 23, 2004) 

(“The Court discerns no reason why . . . for purposes of determining the 

discoverability of documents that have both a legal purpose and a 

nonlegal purpose (e.g., business purpose), the [“because of”] 

methodology in In re Grand Jury Subpoena[, 357 F.3d 900 (9th Cir. 

2004),] should not be applied to the attorney-client privilege.”).
UNITED STATES V. SANMINA CORP. 19

analysis from DLA Piper, rather than legal advice, was not 

clearly erroneous because it was not “illogical, implausible, 

or without support in the record.” Graf, 610 F.3d at 1157. 

Because its factual findings do not rise to clear error, we 

affirm the district court’s conclusion that Sanmina expressly 

waived attorney-client privilege over the Attorney Memos 

when it disclosed the memos to DLA Piper.

Given our conclusion that Sanmina expressly waived 

attorney-client privilege over the Attorney Memos when 

they were disclosed to DLA Piper, we need not reach 

whether Sanmina also waived the privilege when it provided 

the DLA Piper Report to the IRS based on the fairness 

principle. But our inquiry is not over. Because we agree 

with the district court that the Attorney Memos constituted 

both privileged attorney-client communications as well as 

protected work product, we turn next to whether Sanmina 

also waived work-product protection over the memoranda.

IV.

A.

The work-product doctrine is a “qualified” privilege that 

protects “from discovery documents and tangible things 

prepared by a party or his representative in anticipation of 

litigation.” Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 

1494 (9th Cir. 1989) (citing Fed. R. Civ. P. 26(b)(3)); see 

also United States v. Nobles, 422 U.S. 225, 237–38 (1975). 

“At its core, the work-product doctrine shelters the mental 

processes of the attorney, providing a privileged area within 

which he can analyze and prepare his client’s case,” and 

protects both “material prepared by agents for the attorney 

as well as those prepared by the attorney himself.” Nobles, 

422 U.S. at 238–39. The primary purpose of the work-
20 UNITED STATES V. SANMINA CORP.

product rule is to “prevent exploitation of a party’s efforts in 

preparing for litigation.” Admiral Ins. Co., 881 F.2d at 1494.

“The privilege derived from the work-product doctrine 

is not absolute. Like other qualified privileges, it may be 

waived.” Nobles, 422 U.S. at 239. Similar to the waiver of 

the attorney-client privilege, a litigant can waive workproduct protection to the extent that he reveals or places the 

work product at issue during the course of litigation. For 

instance, in Nobles, a criminal defendant’s decision to 

present his defense investigator as a witness waived workproduct privilege over the investigator’s report “with respect 

to matters covered in his testimony.” Id. at 236, 239. 

Similarly, in Hernandez v. Tanninen, 604 F.3d 1095, 1100 

(9th Cir. 2010), a party’s production of an attorney’s notes 

in support of his opposition to a motion constituted a waiver 

of work-product privilege over the subject matter of the 

notes disclosed.

Both parties posit that, unlike waivers by disclosure in 

the attorney-client privilege context, waivers of workproduct protection require disclosing the work product to an 

adversary, and not merely to a third party. While the parties 

do not provide us a controlling decision for this proposition, 

we have nonetheless recognized that “there is an important 

distinction between the rules governing when each type of 

protection has been waived.” Transamerica Computer Co., 

Inc. v. Int’l Bus. Machines Corp., 573 F.2d 646, 647 n.1 (9th 

Cir. 1978). Although we did not further elaborate on this 

“important distinction” in Transamerica Computer,

6 we 

6 We found the distinction between the two types of waiver 

“unimportant” in Transamerica Computer because there, “the third 

person to whom the disclosure was made, a disclosure supposedly 
UNITED STATES V. SANMINA CORP. 21

cited a number of authorities expressing the principle that 

waiver of attorney-client privilege by disclosure to a third 

party “does not necessarily affect the work product 

protection since the two are designed to accomplish different 

results.” Ceco Steel Prod. Corp. v. H. K. Porter Co., 31 

F.R.D. 142, 143 (N.D. Ill. 1962); see also Vilastor-Kent 

Theatre Corp. v. Brandt, 19 F.R.D. 522, 524 (S.D.N.Y. 

1956)).

Since our decision in Transamerica, courts appear to 

have reached a general “uniformity in implying that workproduct protection is not as easily waived as the attorneyclient privilege” based on the distinct purposes of the two 

privileges. United States v. Mass. Inst. of Tech., 129 F.3d 

681, 687 (1st Cir. 1997). While the attorney-client privilege 

“is designed to protect confidentiality, so that any disclosure 

outside the magic circle is inconsistent with the privilege,” 

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.” Id.; see also United States v. Deloitte LLP, 

610 F.3d 129, 140 (D.C. Cir. 2010) (“Voluntary disclosure 

waives the attorney-client privilege because it is inconsistent 

with the confidential attorney-client relationship. Voluntary 

disclosure does not necessarily waive work-product 

protection, however, because it does not necessarily 

undercut the adversary process.”). Accordingly, the 

overwhelming majority of our sister circuits have espoused 

or acknowledged the general principle that the voluntary 

disclosure of work product waives the protection only when 

such disclosure is made to an adversary or is otherwise 

inconsistent with the purpose of work-product doctrine—to 

resulting in a waiver, was IBM’s adversary in litigation.” 573 F.2d

at 647 n.1.
22 UNITED STATES V. SANMINA CORP.

protect the adversarial process.7 District courts in our circuit 

have also applied the same principle.8

7 See, e.g., Mass. Inst. of Tech., 129 F.3d at 687 (“[O]nly disclosing 

material in a way inconsistent with keeping it from an adversary waives 

work product protection.”); In re Steinhardt Partners, L.P., 9 F.3d 230, 

235 (2d Cir. 1993) (“[V]oluntary disclosure of work product to an 

adversary waives the privilege as to other parties.”); In re Chevron 

Corp., 633 F.3d 153, 165 (3rd Cir. 2011) (“[I]t is only in cases in which

the material is disclosed in a manner inconsistent with keeping it from

an adversary that the work-product doctrine is waived.”); Ecuadorian 

Plaintiffs v. Chevron Corp., 619 F.3d 373, 378 (5th Cir. 2010) 

(“Although work product immunity is not automatically waived by 

disclosure of protected material to third parties, disclosure does waive 

protection if it ‘has substantially increased the opportunities for potential 

adversaries to obtain the information.’” (citation omitted)); In re 

Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 

306 (6th Cir. 2002) (“Other than the fact that the initial waiver must be 

to an ‘adversary,’ there is no compelling reason for differentiating waiver 

of work product from waiver of attorney-client privilege.” (footnote 

omitted)); In re Chrysler Motors Corp. Overnight Evaluation Program 

Litig., 860 F.2d 844, 846 (8th Cir. 1988) (“Disclosure to an adversary 

waives the work product protection as to items actually disclosed . . . .”

(internal quotation marks and citation omitted)); Doe No. 1 v. United 

States, 749 F.3d 999, 1008 (11th Cir. 2014) (“Disclosure of workproduct materials to an adversary waives the work-product privilege.”); 

United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 

1980) (“[D]isclosure to a third party does not waive the privilege ‘unless 

such disclosure, under the circumstances, is inconsistent with the 

maintenance of secrecy from the disclosing party's adversary.’”); Carter 

v. Gibbs, 909 F.2d 1450, 1451 (Fed. Cir. 1990) (“Voluntary disclosure 

of attorney work product to an adversary in the litigation for which the 

attorney produced that information defeats the policy underlying the 

privilege . . . .”).

8 See, e.g., Samuels v. Mitchell, 155 F.R.D. 195, 200 (N.D. Cal. 

1994) (“[T]he work product privilege is not automatically waived by any 

disclosure to third persons. Rather, the courts generally find a waiver 

only if the disclosure ‘substantially increases the opportunity for 
UNITED STATES V. SANMINA CORP. 23

Thus, consistent with our sister circuits as well as 

precedent on the unique purposes for the work-product 

doctrine, we hold that disclosure of work product to a third 

party does not waive the protection unless such disclosure is 

made to an adversary in litigation or “has substantially 

increased the opportunities for potential adversaries to 

obtain the information.” 8 Charles Alan Wright & Arthur R. 

Miller, Federal Practice & Procedure § 2024 (3d ed. 2020). 

Put another way, disclosing work product to a third party 

may waive the protection where “such disclosure, under the 

circumstances, is inconsistent with the maintenance of 

secrecy from the disclosing party’s adversary.” Rockwell 

Int’l Corp. v. U.S. Dep’t of Justice, 235 F.3d 598, 605 (D.C. 

Cir. 2001) (internal quotation marks and citation omitted). 

“Under this standard, the voluntary disclosure of attorney 

work product to an adversary or a conduit to an adversary 

waives work-product protection for that material.” Deloitte, 

610 F.3d at 140.

In Deloitte, the D.C. Circuit applied this standard in the 

context of a federal tax case, where the government also 

sought production of work product that the taxpayer 

company, Dow, had disclosed to its independent auditor, 

Deloitte. 610 F.3d at 133. There, the government argued 

that Dow’s disclosure of its attorney work product to 

Deloitte waived the protection because Deloitte was either a 

potential adversary or a conduit to an adversary. Id. at 140–

41. In rejecting both arguments, the D.C. Circuit provided 

some useful guidance on how to determine whether 

disclosure to an adversary, or a conduit to an adversary, has 

occurred.

potential adversaries to obtain the information.’” (citation and quotation 

omitted)).
24 UNITED STATES V. SANMINA CORP.

Addressing whether Deloitte was a “potential adversary” 

to Dow, the D.C. Circuit framed the relevant question as “not 

whether Deloitte could be Dow’s adversary in any 

conceivable future litigation, but whether Deloitte could be 

Dow’s adversary in the sort of litigation the [work-product 

documents] address.” Id. at 140. In concluding “that the 

answer must be no,” the court noted that, in preparing the 

work product, “Dow anticipated a dispute with the IRS, not 

a dispute with Deloitte,” and the work product concerned tax 

implications that “would not likely be relevant in any dispute 

Dow might have with Deloitte.” Id.

As to the “conduit to an adversary” analysis, the D.C. 

Circuit noted that its prior applications of the “maintenance 

of secrecy” standard have generally involved “two discrete 

inquiries in assessing whether disclosure constitutes 

waiver.” Id. at 141. The first inquiry is “whether the 

disclosing party has engaged in self-interested selective 

disclosure by revealing its work product to some adversaries 

but not to others.” Id. If so, “[s]uch conduct militates in 

favor of waiver” based on fairness concerns. Id. The second 

inquiry is “whether the disclosing party had a reasonable 

basis for believing that the recipient would keep the 

disclosed material confidential.” Id. This “reasonable 

expectation of confidentiality” could “derive from common 

litigation interests between the disclosing party and the 

recipient,” or it “may be rooted in a confidentiality 

agreement or similar arrangement between the disclosing 

party and the recipient.” Id.

These points of inquiry into the disclosing party’s 

“selective disclosure” and “reasonable expectation of 

confidentiality”—while highly relevant and often 

dispositive—are not the only considerations at play in 

assessing whether a work-product disclosure is inconsistent 
UNITED STATES V. SANMINA CORP. 25

with the maintenance of secrecy against adversaries. Rather, 

the fact-intensive analysis requires a consideration of the 

totality of the circumstances and is ultimately guided by the 

same principle of fundamental fairness that underlies much 

of our common law doctrine on waiver by implication. 

Thus, we may find the work-product immunity waived 

where the disclosing party’s conduct has reached a “certain 

point of disclosure” towards his adversary such that “fairness 

requires that his privilege shall cease, whether he intended 

that result or not.” Weil, 647 F.2d at 24. Under the fairness 

doctrine however, a court must be careful to “impose a 

waiver no broader than needed to ensure the fairness of the 

proceedings before it. Because a waiver is required so as to 

be fair to the opposing side, the rationale only supports a 

waiver broad enough to serve that purpose.” Bittaker, 

331 F.3d at 720.

In light of these relevant guideposts, we turn to whether 

Sanmina voluntarily disclosed the Attorney Memos “to an 

adversary or a conduit to an adversary” either when it 

disclosed the Attorney Memos to DLA Piper or when it 

provided the DLA Piper Report to the IRS.

B.

The question of whether Sanmina’s disclosure of the 

Attorney Memos to DLA Piper alone qualifies as a 

“disclosure to an adversary” is fairly easy to answer. We 

conclude it does not. The government readily concedes that 

DLA Piper was not an adversary to Sanmina. Nor was DLA 

Piper a potential adversary. As Deloitte and other courts 

have held, a taxpayer’s disclosure of its attorney work 

product to an independent auditor does not constitute 

disclosure to an adversary sufficient to waive the protection. 

See Deloitte, 610 F.3d at 139 (“Among the district courts that 

have addressed this issue, most have found no waiver.”) 
26 UNITED STATES V. SANMINA CORP.

(citing cases). In that same vein, Sanmina’s disclosure of the 

Attorney Memos to DLA Piper for the purpose of obtaining 

a valuation analysis may render DLA Piper a third party 

insofar as attorney-client privilege is concerned, but it does 

not transform DLA Piper into an adversary or even a 

potential adversary with respect to the memoranda. Similar 

to the work product at issue in Deloitte, the Attorney Memos

were prepared in anticipation of a dispute between Sanmina 

and the IRS, not between Sanmina and DLA Piper, and they 

involve legal assessments of potential tax implications for 

Sanmina, which would likely be irrelevant in any potential 

dispute between Sanmina and DLA Piper. Id. at 140.

The government argues that DLA Piper was nonetheless 

a “conduit to an adversary” because the DLA Piper Report 

“was intended for disclosure to interested tax authorities” 

and any “expectation of confidentiality was therefore 

absent.” The relevant inquiry, however, is not whether 

Sanmina expected confidentiality over the DLA Piper 

Report. It is whether Sanmina “had a reasonable basis for 

believing that [DLA Piper] would keep the [Attorney 

Memos] confidential” in the process of producing its 

valuation analysis. Deloitte, 610 F.3d at 141. That Sanmina 

shared the Attorney Memos with DLA Piper to obtain a 

valuation report for the IRS does not necessarily mean that 

Sanmina knew or should have known that the resulting DLA 

Piper Report would disclose or make reference to its attorney 

work product. If anything, Sanmina’s enlistment of DLA 

Piper’s assistance in anticipation of litigation with the IRS 

indicates a “common litigation interest” between Sanmina 

and DLA Piper insofar as the Attorney Memos are 

concerned. Id. at 142. Furthermore, as discussed earlier, 

some facts in the record support a reasonable belief on 

Sanmina’s part that the Attorney Memos were maintained 

within a confidential relationship with DLA Piper. See 
UNITED STATES V. SANMINA CORP. 27

supra note 3. On balance, the circumstances suggest that 

Sanmina had a reasonable expectation of confidentiality 

over the Attorney Memos at the time of their disclosure to 

DLA Piper.

There is also no indication that Sanmina was engaging in 

“self-interested selective disclosure” when it provided the 

memoranda to DLA Piper. Id. at 141. “Selective disclosure 

involves disclosing work product to at least one adversary.” 

Id. at 142. As we have already found and the government 

concedes, DLA Piper was not an adversary to Sanmina when 

it received the Attorney Memos, nor were any of the other 

entities in receipt of the memoranda. Accordingly, we 

conclude that Sanmina’s disclosure of the Attorney Memos 

to DLA Piper did not constitute a disclosure to an adversary 

or a conduit to an adversary sufficient to waive the workproduct privilege.

C.

Although Sanmina’s disclosure of the Attorney Memos 

to DLA Piper in itself did not waive work-product 

protection, the more difficult question is whether Sanmina 

waived such protection when it provided the IRS with the 

DLA Piper Report. Under the “disclosure to an adversary” 

standard, there is no dispute that the IRS is an adversary to 

Sanmina insofar as the Attorney Memos are concerned. 

However, Sanmina did not disclose the actual Attorney 

Memos to the IRS; rather, it disclosed a valuation report that 

cited to the protected memoranda. Sanmina argues that 

because the DLA Piper Report did “not disclose or describe 

the contents of the Attorney Memos,” there is no 

“disclosure” sufficient to waive the memoranda’s workproduct protection.
28 UNITED STATES V. SANMINA CORP.

The concept that waiver by disclosure requires the 

disclosure of some “content” of a privileged document—or 

at least more than the fact of its existence—makes intuitive 

sense. It also finds support from case law.9 This point, 

however, is not wholly dispositive to our waiver analysis. 

As we have recognized in the attorney-client privilege 

context, there is a difference between express and implied 

waivers. This framework is also applicable in the context of 

work-product protection, where an express waiver generally 

occurs by disclosure to an adversary, while an implied 

waiver occurs by disclosure or conduct that is inconsistent 

with the maintenance of secrecy against an adversary. See 

In re Martin Marietta Corp., 856 F.2d 619, 625–26 (4th Cir. 

1988) (finding a regulatory disclosure of work product 

“impliedly waived the work product privilege as to all nonopinion work product on the same subject matter as that 

disclosed” but not to opinion work product). Sanmina’s 

claim that the DLA Piper Report does not disclose any of the 

content of the Attorney Memos to the IRS may foreclose a 

finding of express waiver in this case, but it is only one factor 

9 “The case law is well settled that disclosing the fact that there were 

confidential communications between a client and his or her attorney—

or even disclosing that certain subjects confidentially were discussed 

between a client and his or her attorney—does not constitute a waiver by 

partial disclosure.” Roberts v. Legacy Meridian Park Hosp., Inc., 97 F. 

Supp. 3d 1245, 1253 (D. Or. 2015). “The disclosure must be of 

confidential portions of the privileged communications. This does not 

include the fact of the communication, the identity of the attorney, the 

subject discussed, and details of the meetings, which are not protected 

by the privilege.” Id. (citing 2 Paul R. Rice, Attorney-Client Privilege in 

the United States § 9:30 at 153–56 (2014)). This proposition also finds 

inferential support from the statement in Weil that “voluntary disclosure 

of the content of a privileged attorney communication” constitutes 

subject matter waiver. 647 F.2d at 24 (emphasis added).
UNITED STATES V. SANMINA CORP. 29

we consider in determining whether to find an implied 

waiver.

Thus, the focal point of our waiver inquiry is whether, 

under the totality of the circumstances, Sanmina acted in 

such a way that is inconsistent with the maintenance of 

secrecy against its adversary in regard to the Attorney 

Memos. More broadly, we must ask whether and to what 

extent fairness mandates the disclosure of the Attorney 

Memos in this case. While we are generally guided by the 

same fairness principle underlying waivers by implication in 

the attorney-client privilege context, the overriding concern 

in the work-product context is not the confidentiality of a 

communication, but the protection of the adversary process.

Here, Sanmina obtained a valuation report from DLA 

Piper in anticipation of scrutiny from the IRS over a claimed 

tax deduction. When asked for proof from the IRS, Sanmina 

responded with the DLA Piper Report—a document that 

expressly referred to the Attorney Memos. Presumably, 

Sanmina could have chosen to substantiate the deduction 

with other documents that did not make reference to the 

Attorney Memos but did not. Such conduct seems 

inconsistent with Sanmina’s purported goal of keeping the 

memoranda secret from the IRS. Assuming that Sanmina 

reasonably expected confidentiality over the Attorney 

Memos when sharing them with DLA Piper, this expectation 

became far less reasonable once Sanmina decided to disclose 

to the IRS a valuation report that explicitly cited the 

memoranda as a basis for its conclusions. In doing so, 

Sanmina increased the possibility that the IRS, its adversary 

in this matter, might obtain its protected work product, and 

thereby engaged in conduct inconsistent with the purposes 

of the privilege.
30 UNITED STATES V. SANMINA CORP.

To the extent that Sanmina implicitly waived the workproduct privilege, the scope of its waiver must be “closely 

tailored . . . to the needs of the opposing party” and limited 

to what is necessary to rectify any unfair advantage gained 

by Sanmina from its conduct. Bittaker, 331 F.3d at 720. In 

that regard, it is not clear what unfair advantage Sanmina has 

gained from its conduct, or how the IRS has been unfairly 

disadvantaged, particularly at the current stage of 

proceedings. The dispute before us is whether to enforce a 

petition for a summons in a tax audit initiated by the IRS. 

The parties have not yet engaged in any formal litigation 

regarding the underlying validity of Sanmina’s claimed tax 

deduction. Even if Sanmina may have temporarily reaped 

the benefit of its claimed tax deduction, the potential 

consequences of Sanmina’s decision to withhold the 

Attorney Memos and support the deduction with a 

questionable valuation report ultimately bear more heavily 

on Sanmina than on the IRS. We disagree with the district 

court’s conclusion that, without the disclosure of the 

Attorney Memos, “the IRS or any other reader would be 

forced to simply accept the [DLA Piper] opinion without 

access to the foundational material.” At this audit stage, the 

IRS is not required to accept the conclusions in the DLA 

Piper Report at all. Even without access to the Attorney 

Memos, the IRS could still proceed with its examination of 

Sanmina’s returns, conclude that Sanmina has failed to 

adequately support its claimed deduction with the DLA 

Piper Report and other documents provided, and disallow 

the deduction. See Interstate Transit Lines v. Comm’r of 

Internal Revenue, 319 U.S. 590, 593 (1943) (stating “the 

now familiar rule that an income tax deduction is a matter of 

legislative grace and that the burden of clearly showing the 

right to the claimed deduction is on the taxpayer”). So long 

as Sanmina continues to refuse to produce the Attorney 
UNITED STATES V. SANMINA CORP. 31

Memos, it faces the likely risk of an unfavorable decision 

from the IRS in regard to its tax deduction.

The Attorney Memos, as described by Sanmina’s inhouse counsel and confirmed by the district court’s review, 

contain both factual discussions of the relevant transactions 

and legal analyses of these facts in light of various tax law 

authorities. Thus, the memoranda contain both factual work 

product and opinion work product. Based on Sanmina’s 

overall conduct, Sanmina has implicitly waived protection 

over any factual or non-opinion work product in the 

Attorney Memos that serve as foundational material for the 

DLA Piper Report. However, the IRS provides no reason 

why the scope of this implied waiver should encompass the 

opinion work product contained in the Attorney Memos. 

Besides its general argument the Attorney Memos are 

needed to understand the DLA Piper Report, the IRS does 

not explain why the “mental impressions, conclusions, 

opinions or legal theories” of Sanmina’s in-house attorneys 

are specifically at issue or critical to its assessment of the 

deduction’s legal validity. Hickman v. Taylor, 329 U.S. 495, 

508 (1947). We have held that such opinion work product 

is discoverable only “when mental impressions are at issue 

in a case and the need for the material is compelling.” 

Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 

577 (9th Cir. 1992); see also Upjohn Co. v. United States, 

449 U.S. 383, 401 (1981) (“[S]uch work product cannot be 

disclosed simply on a showing of substantial need and 

inability to obtain the equivalent without undue hardship.”).

According to Sanmina, it has produced to the IRS both 

the DLA Piper Report as well as the underlying transactional 

documents on which the Attorney Memos and the DLA 

Piper Report relied. These disclosures, along with our 

ordered disclosure of the factual work product contained in 
32 UNITED STATES V. SANMINA CORP.

the Attorney Memos, should provide the IRS with the same 

underlying facts and data on which Sanmina’s attorneys 

relied in generating the legal opinions contained in the 

Attorney Memos. With this information, the IRS should be 

able to rely on its own attorneys to analyze the relevant facts 

in light of the applicable tax authorities to determine the 

legal validity of Sanmina’s tax deduction. While it might 

certainly be helpful to the IRS to have access to the entirety 

of the memoranda, this reason does not justify the IRS’s 

entitlement to the legal theories and opinions of its potential 

adversary in litigation. In fact, mandating full disclosure of 

such protected work product under these circumstances may 

potentially undermine the adversary process by allowing the 

IRS the opportunity to litigate “on wits borrowed from the 

adversary” in a future legal dispute with Sanmina. Hickman, 

329 U.S. at 516 (Jackson, J., concurring).

We conclude that fairness does not require the 

categorical disclosure of Sanmina’s protected work product 

to the IRS at this stage of prelitigation. Rather, fairness 

requires, at most, the disclosure of the factual, or nonopinion, work product contained in the Attorney Memos 

upon which the DLA Piper Report relies. Any opinion work 

product—meaning, the attorney’s “mental impressions, 

conclusions, opinions or legal theories”—contained in the 

Attorney Memos shall remain protected by the work-product 

doctrine.

V.

Sanmina waived the attorney-client privilege when it 

disclosed the Attorney Memos to DLA Piper. However, 

such disclosure did not automatically waive work-product 

protection over the Attorney Memos. Rather, waiver of 

work-product immunity requires either disclosure to an 

adversary or conduct that is inconsistent with the 
UNITED STATES V. SANMINA CORP. 33

maintenance of secrecy against its adversary. Under this 

standard, Sanmina did not expressly waive work-product 

immunity merely by providing the Attorney Memos to DLA 

Piper, but its subsequent use of the DLA Piper Report to 

support its tax deduction in an audit by the IRS was 

inconsistent with the maintenance of secrecy against its 

adversary. In imposing an implied waiver of the workproduct privilege in this case, we conclude that the fairness 

principle does not require the categorical disclosure of the 

Attorney Memos at this stage. Rather, Sanmina’s implied 

waiver of the work-product protection only extends to the 

factual portions of the Attorney Memos.

Thus, we GRANT IN PART and DENY IN PART the 

IRS’s petition to enforce its summons. We order disclosure 

of only the factual content of the Attorney Memos on which 

the DLA Piper Report relies. We remand to the district court 

for the limited purpose of determining the specific portions 

of the Attorney Memos that should be disclosed to the IRS 

and ordering disclosure consistent with this opinion.