Corporate Investigations, Attorney-Client Privilege, and Selective Waiver: Is a Half-Privilege Worth Having at All?
40 Pages Posted: 20 Jun 2006
As the title suggests, this article is an analysis of the selective waiver doctrine, which allows a party to disclose materials protected by the attorney-client and work product privileges to the government during investigations without waiving the privilege as to third-party litigants. Specifically, the article analyzes the development of the selective waiver doctrine and why recent polices adopted by governmental agencies, specifically the Department of Justice and SEC, have made this doctrine a forefront of conversation amongst litigators, legislators and academics. But is a blanket adoption of the selective waiver doctrine wise?
Courts have taken a variety of approaches to the selective waiver doctrine. The doctrine was first introduced in 1978 by the Eighth Circuit in Diversified Industries, Inc. v. Meredith as a means of encouraging corporations to conduct internal investigations. Since Meredith, circuit courts have largely rejected the doctrine as inconsistent with the bedrock principle of confidentiality inherent in the attorney-client privilege. However, in 1999, the DOJ adopted a policy, articulated in what has become known as the Holder Memo, that set out factors a prosecutor should consider in whether to charge a corporation with a crime. This policy was rearticulated in 2003 through the Thompson Memo and the SEC has adopted a similar policy. One of the considerations involves whether a corporation has cooperated and has evolved into a policy which essentially requires corporations to waive the attorney-client and work-product protections to be deemed as cooperating. This has created what many have dubbed a culture of waiver in corporate America. Obviously, this has serious implications on the sanctity of the attorney-client privilege as well as practical concerns as, once the privilege has been waived, it is waived to all future parties including third-party litigants. In reaction to the waiver implications, some commentators and judges have found that selective waiver is a sound solution. This article chronicles the negative impacts a culture of waiver has, and in turn evaluates the adequacy of selective waiver in light of these policy concerns. Ultimately, the article concludes that selective waiver is a poor solution and that a change in the underlying governmental policies is a more desirable solution.
Keywords: selective, waiver, Thompson, holder, memo, memorandum, seaboard, diversified, Meredith, attorney-client, work-product, privilege
JEL Classification: K20, K21, K22, K23, K29, K40, K41
Suggested Citation: Suggested Citation