Sammina Corp. gave two memos generated by its in-house attorneys to DLA Piper for the purpose of obtaining DLA Piper’s valuation report which Sammina submitted to the IRS in support of its taking a worthless stock deduction in its income tax return. The DLA Piper report mentioned and was based in part on the two memos. Although district courts in the 9th Circuit are in conflict over whether turning an attorney-client privileged document over to an attorney for dual purposes (legal tax advice and (here) valuation of an asset), the 9th Circuit ducked the issue in this case, just holding that the district court’s finding that Sammina had waived the privilege by turning the memos over to DLA Piper was not clearly erroneous. By contrast, 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.” Under this rule, a potential adversary is one that the privilege holder expects to battle in the actual or contemplated litigation, not everyone who might conceivably become an adversary. The increased opportunity of disclosure occurs when the privilege holder selectively discloses privileged information to some but not all adversaries or when the privilege holder has no reason to expect the third party to keep the information confidential. But those are not the sole guideposts. A court must examine the totality of circumstances to see whether it is fair to withhold the information from the adversary who seeks it. Sammina did not waive work product protection by giving the memos to DLA Piper (since it was not an adversary and could be expected to keep the memos confidential) but did waive the protection by submitting DLA Piper’s report, which cited the memos (but didn’t disclose their contents) in support of its claimed tax deduction. The opinion concludes that the waiver was limited, however, to the portions of the memos that discuss factual information, not the opinion work product portions of the memos that applies legal authorities to those facts to draw conclusions about their proper treatment for income tax purposes.