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TechCo is sued in federal court for securities fraud after a product launch failed. TechCo's general counsel directed engineers to write memoranda explaining when they learned of defects so counsel could advise the board about disclosure obligations. Several engineers sent memoranda marked "legal investigation" only to general counsel.
TechCo also has two disputed communications. First, the chief executive emailed general counsel and the chief marketing officer, asking, "Can we legally describe the product as field-tested, and will that phrasing help sales?" General counsel replied with legal risk advice and the marketing officer replied with sales strategy. Second, after receiving legal advice, the chief executive forwarded counsel's email to an outside investment banker and wrote, "We need this for next week's financing discussion." The banker had no legal engagement letter and was not helping counsel render legal advice.
Investor seeks the engineer memoranda, the executive email chain, the forwarded legal advice, and the underlying facts about product defects. How should the court rule on attorney-client privilege and waiver?