Selective Waiver in the Era of Privilege Uncertainty
Vol. 5
May 2005
Page
Privilege law, a pillar of the American legal system, is in flux - especially in the context of corporate investigations. In 2003, the United States Department of Justice issued new guidelines in what has become known as the Thompson Memorandum conditioning cooperative status on waiver of privilege. The Thompson Memorandum stated that "prosecutors should consider the willingness of a corporation to waive such protection when necessary to provide timely and complete information as one factor in evaluating the corporation's cooperation."[1] Additionally, on April 30, 2004 the U.S. Sentencing Commission proposed amendments to the federal sentencing guidelines for corporations. These amendments were adopted by Congress on November 1, 2004 and may condition leniency on waiver.[2],[3] Taken together, these developments appear as part of a larger trend that diminishes the value of privilege and thereby increases cooperation.[4] Motivated by these developments and the way "government agencies . . . are overrid[ing] the privilege," on October 6, 2004, American Bar Association President Robert J. Grey Jr. created the ABA Task Force on the Attorney Client Privilege ("the Task Force")[5] to study the significance of these developments and create a response.[6]
When applied, the Thompson Memorandum guidelines appear to an attorney in the following posture. A government agency, such as the SEC or the Justice Department seeks the investigated body's cooperation, requiring waiver of privilege and full assistance. In exchange, the government agency offers leniency and provides a confidentiality agreement to protect against disclosure to third parties.[7]
Let the buyer beware.[8] Under the traditional understanding of waiver, when the subject of an investigation waives privilege to the government the privilege no longer applies as against third parties.[9] Hence, when presented with the decision of whether to comply with the government's request for waiver, subjects of an investigation must choose between cooperation and privacy. To make this decision easier, a bill introduced in the 108th Congress would have modified existing privilege law to create a doctrine of selective waiver with regard to the SEC. [10],[11],[12]
In essence, the government would create a special channel between it and subjects of investigation. Information passed along this channel would remain beyond the reach of third parties. Thus, the subject of an investigation no longer needs to choose between privacy with regard to third parties and cooperation.
This article analyzes the reasons why courts view such confidentiality agreements suspiciously and argues that attorneys, judges and lawmakers should continue to do so. As the Supreme Court once noted in the context of police interrogations, "[a]ny system of administration which permits the prosecution to trust habitually compulsory self-disclosure as a source of proof must itself suffer morally thereby."[13] In addition, creation of a legislative doctrine of federalized selective waiver would do too much to preempt State Attorney Generals (SAGs) and undermine a productive enforcement mechanism.
A brief review of recent events surrounding the doctrine of selective waiver involves its recent reexamination in a Sixth Circuit Court of Appeals case, In re Columbia/HCA.[14] To determine the wisdom of the doctrine of selective waiver, this article considers the cases of In re Columbia/HCA, Saito v. McKesson HBOC, Inc.,[15],[16] (a case in which the SEC filed an amicus brief advocating selective waiver),[17] and Diversified v. Meredith Industries,[18] the case from which the doctrine of selective waiver emerged. This article also considers two cases that were critical of Diversified, Permian Corp. v. United States [19] and Westinghouse Elec. Corp. v. Philippines.[20]
I. Doctrinal Review
A. Approaching the Issue of Selective Waiver
Attorneys, clients, and government entities interact in both adversarial and cooperative contexts. Determining where privilege begins and ends helps to define the character of these interactions. If disclosure to the government (or a specific government entity) does not forfeit privilege vis-à-vis third parties, more cooperation between the government and clients may be in order. Conversely, where disclosure waives privilege against third parties, less cooperation may result. The question of how much cooperation is "right" is to be determined by morality, economics, and legal norms (precedent).
A utilitarian answer forces us to compare societal welfare in selective waiver versus forfeiture regimes (where any voluntary disclosure results in forfeiture of privilege). If we believe that society will have more wealth with increased cooperation and less litigation, then economic rationality dictates that selective waiver is optimal. [21] Morality brings up concerns.[22] Is a society which encourages cooperation with government more or less moral? Will corporations behave more or less ethically when allowed to disclose certain issues to the government without loss of privilege to third parties?
To address these questions, some background is needed. Section B provides a brief review of the doctrines of privilege and waiver while section C provides the background of the controversy over selective waiver. Subsection 1 first illuminates the circuit court split that has emerged over the issue. Next, in subsection 2, recent legislative efforts are reviewed. Subsections 3 and 4 present the case of Diversified, (which introduced the doctrine of selective waiver) followed by two important cases which critiqued Diversified's holding.
In Section II, the more recent cases of In re Columbia/HCA and Saito v. McKesson are analyzed in greater detail in supporting the conclusion that adoption or creation of a selective waiver doctrine is unwise.
B. Brief Review of the Legal Framework of Doctrines of Privilege and Waiver
1. Privileges & Waivers
a) Work Product
When the Federal Rules of Civil Procedure (FRCP) were first promulgated in 1938, there was no provision governing the discoverability of material covered under what is now known as the "work-product" doctrine.[23] In 1947, the Supreme Court decided Hickman v. Taylor [24] and judicially created the work-product doctrine. Hickman held that discovery of the "work product" of the lawyer is impermissible because otherwise, "an attorney's thoughts … would not be his own."[25] Justice Jackson, focusing on fairness and privacy, noted that "[d]iscovery was hardly intended to enable a learned profession to perform its functions without wits or on wits borrowed from the adversary."[26] In 1970, the FRCP were amended to include the work-product doctrine.[27] FRCP 26(b)(3) provides that documents and "tangible things" prepared "in anticipation of litigation or for trial" may only be discovered if there is a "substantial need" and that the party seeking discovery would suffer "undue hardship" in obtaining the materials by other means.[28]
Though "the work product rule evolved out of civil litigation … [it] has been made applicable to criminal litigation by both statute (Rule 16(b)(2), Fed. R. Civ. P.) and court decisions (United States v. Nobles, 422 U.S. 225, 236, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975)) [and] … has also been applied to grand jury proceedings. See, In Re Grand Jury Proceedings, 473 F.2d 840 (CA 8 1974)."[29]
b) The Attorney-Client Privilege
The attorney-client privilege is the oldest of the privileges for confidential communications.[30] In United States v. United Shoe Machinery Corp. [31] Judge Wyzanski summarized the requisite elements of the attorney-client privilege, the last of which is the absence of waiver.[32] The purpose of the privilege is to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."[33] The protection of the privilege extends only to communications and not to facts.[34] The privilege also applies when the client is a corporation.[35] The attorney-client privilege "was intended as a shield, not a sword."[36] Therefore, "[c]laims of attorney-client privilege are narrowly construed because [the privilege] reduces the amount of information discoverable during the course of a lawsuit."[37] Thus, "[t]he privilege 'applies only where necessary to achieve its purpose and protects only those communications necessary to obtain legal advice.'"[38]
c) Doctrine of Waiver
Understanding the notion of selective waiver requires an understanding of the more general concept of waiver, which requires that "a privilege can be waived and, once waived, is lost."[39] The key point is that not only is the privilege lost to a party's adversary, but it is also lost to other future adversaries. Thus, selective waiver reverses the general rule; privilege would not be lost, at least not to all.
More generally, intent to waive one's privilege is not necessary for a waiver to occur. [40],[41] Thus, waiver can be express[42] or implied.[43] However, courts are cautious about finding implied waivers.[44] Waiver may be applied to both work product and attorney-client privileges.[45] Voluntary disclosure of work product to an adversary waives the privilege as to other parties.[46] This is because privileged communications disclosed to any third party destroy the confidentiality upon which the privilege is premised.[47]
Some courts appear to be more reluctant to find waivers of the work product privilege.[48] However, while there may be some difference accorded to the selective waiver doctrine as it applies to work product versus attorney-client privilege, at least one court of appeals believes the treatment should be the same.[49]
There are cases where disclosure of work product to the government waived the privilege with regard to third parties.[50] At least one case explicitly holds that in-house counsel has sufficient authority to waive the attorney-client privilege for a corporation.[51] One important exception to the doctrine of waiver is that a common interest between a "transferor" and a "transferee" creates no waiver.[52] However, when the company is the target of a government investigation, disclosure may not be considered "voluntary."[53]
C. Background of the Controversy
Split
The D.C.,[54] Federal,[55] Second,[56] Third,[57] Fourth,[58] and Sixth circuits[59] fall into the "no selective waiver" camp. The Eighth Circuit argues that there can be selective waiver without an accompanying confidentiality agreement. The Second Circuit at one time declined to adopt a "per se" rule that all voluntary disclosures to the government waive work product privilege; [60] however, it appears to have reversed itself.[61] The First[62] and Seventh Circuits made statements in dicta supporting limited waiver accompanied by confidentiality.[63] Ninth Circuit district courts, in declining to follow Diversified, stated that the privilege is waived without steps to preserve confidentiality (which might be construed as preserving the possibility).[64],[65] However, the Ninth Circuit Court of Appeals has noted that the issue still appears open.[66] Several district courts in Wisconsin, Texas and New York have followed the Diversified holding.[67]
As noted above, some courts have held that as a matter of law, there is no such thing as "selective waiver." In the 108th Congress, Section 4 of H.R. 2179 would have put an end to this dispute, at least with regard to disclosures made to the Securities and Exchange Commission (SEC).[68]
The SEC has a longstanding interest in the creation of a selective waiver doctrine.[69] In addition to giving Congressional testimony arguing for the doctrine of selective waiver in H.R. 2179, the SEC filed amicus briefs in a number of cases where selective waiver was at issue. The SEC proposed and invited comment on a rule implementing the Sarbanes-Oxley Act that purports to establish the doctrine.[70]
The SEC's interest in validating the selective waiver doctrine makes the examination of whether there should be such a doctrine even more timely and important. To put it briefly, should Section 4 of H.R 2174 have been adopted?
The financial scandals that led to the 107th Congress' passage of H.R. 3763, the Sarbanes-Oxley Act of 2002,[71] raised the importance of a simmering circuit court split over the doctrine of selective waiver. In November of that year, the SEC invited comment on a number of proposed rules. This included proposed Rule 205.3(e)(3) which stated that "[w]here an issuer, through its attorney, shares with the Commission, pursuant to a confidentiality agreement, information related to a material violation, such sharing of information shall not constitute a waiver of any otherwise applicable privilege or protection as to other persons."[72]
At the time the SEC proposed 205.3 (e)(3), it knew that there was a legal dispute over the selective waiver doctrine. The SEC noted that 205.3 (e)(3) "would set forth the Commission's position on an unsettled question: whether an issuer waives attorney-client privilege and/or other protection (such as work-product protection) by sharing with the Commission, pursuant to a confidentiality agreement, confidential information regarding misconduct by the issuer's employees or officers."[73] That is to say, that if an entity shares with the Commission some document that otherwise would be privileged, the very act of doing so may waive the privilege vis-à-vis third parties, even though the privilege is accompanied by a confidentiality agreement.
The SEC argues that selective waiver "significantly enhances the Commission's ability to conduct expeditious investigations and obtain prompt relief." Accordingly, "the Commission enters into confidentiality agreements only when it has reason to believe that obtaining the reports will allow the Commission to save substantial time and resources in conducting investigations and/or provide more prompt monetary relief to investors." Furthermore, "though the Commission must verify that internal reports are accurate and complete and must conduct its own investigation, doing so is far less time-consuming and less difficult than starting and conducting investigations without the internal reports."[74]
Controversy had been brewing amongst the circuit courts over the doctrine of selective waiver for quite some time, leading several courts to conclude that "unfortunately, the case law addressing the issue of limited waiver [is] in a state of hopeless confusion."[75]
At the very least, there exists considerable need for clarity. Uncertainty creates the risk that a company will believe a release has been made confidentially, only to learn that third parties will be able to obtain its discovery. Uncertainty may also create the risk that companies will become unwilling to cooperate with investigations, limiting the SEC's effectiveness.[76] As the U.S. Supreme Court famously put it, "[a]n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all."[77] Since the Eighth Circuit was the first court to recognize a doctrine of selective waiver in its Diversified decision, that case will be examined below.
3. Diversified
In Diversified, the defendants below, contending attorney-client privilege, petitioned the Eighth Circuit Court of Appeals to hear its writ of mandamus en banc to prevent plaintiffs below, The Weatherhead Company, from discovery of a report prepared by the law firm of Wilmer, Cutler & Pickering.[78] The SEC was conducting an investigation to determine whether Diversified established and maintained a "slush" fund to bribe agents of companies with whom Diversified dealt.[79] Weatherhead contended that any "originally existing privilege" was waived when Diversified turned the material over to the SEC without protest in response to an agency subpoena.[80] Wilmer, Cutler & Pickering had been hired by Diversified's Board of Directors to conduct an independent investigation of the allegations.[81] In Diversified, the Eight Circuit Court of Appeals held that privilege as it pertained to third parties was not waived.[82]
a) Diversified's Authority Examined
In concluding that Diversified had only made a "limited" waiver,[83] the Eighth Circuit Court of Appeals focused on the fact that the disclosure occurred in a "separate and nonpublic SEC investigation."[84] The Eighth Circuit Court of Appeals cited two cases for authority, Bucks County Bank & Trust Co. v. Storck,[85] and United States v. Goodman.[86] In BucksCounty,[87] the plaintiff sought to establish that a waiver of the attorney-client privilege had transpired based on testimony the client gave in a related case. The District Court denied the motion, stating:
Suffice it to say that testimony given by a client at a hearing, whereby the client defendant by motion seeks the return of property taken from him by an alleged illegal search and seizure, is given for the purpose of such motion, alone, and does not constitute a general waiver of privilege by the client defendant, and it is equally clear that such evidence is not usable against the defendant even in the criminal case in chief in connection with which a return of property or suppression of evidence is sought.[88]
This is scant authority, whose application seems far removed from the facts of Diversified. Note that in juxtaposition to Diversified, the rationale is primarily moral. In Bucks County, the court simply held that when a defendant's testimony is used to determine whether property was illegally taken, it does not waive privilege in later proceedings.
In Goodman, the appellant asserted that the court below erred in denying his Fifth Amendment claim of privilege.[89] The government suggested that Goodman's disclosure to federal agents in 1950 constituted a waiver of his Fifth Amendment privilege.[90] The court found that "[i]t has been uniformly held that a prior disclosure to investigation officials cannot constitute a waiver of the privilege with respect to the same matter in a subsequent legal proceeding. A waiver of the privilege must occur in the same proceeding in which it is sought to be invoked."[91] Again, this authority, involving a Fifth Amendment case holding that a waiver must occur in the same proceeding, appears rather weak and not clearly applicable to Diversified.
Yet despite the weakness of its authority, the Diversified court provided at least one (debatably) solid public policy reason for its holding - the efficiency of investigation.[92] Diversified stated "[t]o hold otherwise may have the effect of thwarting the developing procedure of corporations to employ independent outside counsel to investigate and advise them in order to protect stockholders, potential stockholders and customers."[93] Though the Diversified court did not go further in mentioning the efficiency of government investigations, later courts, and the SEC itself, have taken this position.[94] However, the proposition that efficiency trumps truthfulness requires further analysis. Hence, we turn to two cases critical of Diversified.
4. Permian & Westinghouse: Important Critiques of Diversified
Permian provides an important critique of Diversified. The Permian court found "that the attorney-client privilege should be available only at the traditional price: a litigant who wishes to assert confidentiality must maintain genuine confidentiality."[95] As distinguished from Diversified's rationale, the Permian court made a fundamentally moral argument, an appeal to justice:
The client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others, or to invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit.[96]
Permian rested upon the observation that selective waiver has little to do with the privilege's purpose of "protecting the confidentiality of attorney-client communications in order to encourage clients to obtain informed legal assistance.[97] Thus, Permian reflects a moral, rather than utilitarian, sensibility.
Westinghouse Elec. Corp. v. Republic of Philippines[98] is another important case that considered, and ultimately rejected, Diversified's holding. In Westinghouse, the Third Circuit Court of Appeals held that there is no selective waiver for either attorney-client or work product.[99] The Westinghouse court reasoned similarly to Permian in stating that:
The traditional waiver doctrine provides that disclosure to third parties waives the attorney-client privilege unless the disclosure serves the purpose of enabling clients to obtain informed legal advice. Because the selective waiver rule in Diversified protects disclosures made for entirely different purposes, it cannot be reconciled with traditional attorney-client privilege doctrine.[100]
Thus Westinghouse also articulated a central reason why courts have rejected the selective waiver doctrine. Disclosures to governmental agencies do not "fit" into traditional exceptions to the waiver of privilege, which reflect moral concerns. Though disagreeing with Diversified's holding, Westinghouse differs from Permian by also articulating that the central reason for allowing selective waiver is to "encourage[] voluntary disclosure to government agencies," an efficiency argument, which the dissent in In re Columbia/HCA and the SEC concurred with.[101]
Thus far, two distinct perspectives emerge, those who see selective waiver in terms of efficiency and those who see it as an impediment to truthfulness. The next section closely reviews recent case law in evaluating the pros and cons of selective waiver.
II. Recent Cases
A. In re Columbia/HCA: A Recent Case Contrary to Diversified
An important and recent examination of Diversified's selective waiver doctrine emerged in a case before the Sixth Circuit Court of Appeals, In re Columbia/HCA.[102] Since the SEC used Columbia/HCA's holding as evidence that it needs validation of the selective waiver doctrine (both in amicus briefs and in congressional testimony given by the SEC's director of enforcement) the next section of this paper analyzes Columbia/ HCA's facts, its use of authority, the public policies implicated, and the dissent.[103]
1. Columbia/HCA's Facts and Holding
Columbia/HCA, a healthcare corporation, agreed to produce audits to the Department of Justice (DOJ) contingent on strict confidentiality.[104] DOJ and Columbia/HCA reached a settlement.[105] When third parties became aware of the results of the DOJ investigation, they filed lawsuits seeking to discover the audits.[106] Columbia/HCA invoked both work product and attorney-client privileges,[107] arguing that it did not waive privilege in accord with the principles expressed in Diversified.[108] The court below granted a motion to compel disclosure.[109] The Sixth Circuit Court of Appeals affirmed the lower court's holding that by voluntarily producing documents to the DOJ, Columbia/HCA waived both its attorney-client and work product privileges.[110]
In reviewing the reasons for and against the selective waiver doctrine, the Columbia/HCA court began by noting that "the uninhibited approach adopted out of wholecloth by the Diversified court has little, if any, relation to fostering frank communication between a client and his or her attorney."[111] Thus, the Sixth Circuit immediately identified the public policy behind the privilege - fostering frank communication. As the Sixth Circuit explained, "any form of selective waiver, even that which stems from a confidentiality agreement, transforms the attorney-client privilege into merely another brush on an attorney's palette, utilized and manipulated to gain tactical or strategic advantage."[112] Nor did the majority believe that contractual principles should control, because the attorney-client privilege "is not a creature of contract, arranged between parties to suit the whim of the moment."[113]
Despite noting the "considerable appeal, and justification, for permitting selective waiver when the initial disclosure is to an investigating arm of the Government,"[114] the Columbia/HCA court stated that this rationale "has no logical terminus"[115] and that in the "truth-finding process ... a private litigant stands in nearly the same stead as the Government."[116] According to the Columbia/HCA court, "a plaintiff in a shareholder derivative action or a qui tam action who exposes accounting and tax fraud provides as much service to the 'truth finding process' as an SEC investigator."[117] Thus, the Sixth Circuit Court of Appeals valued truthfulness over the efficiency of investigations. Furthermore, the Sixth Circuit believed that the best path to truthfulness may not be thorough federal oversight because "litigants act as private attorneys general, and through their actions vindicate the public interest."[118] Thus, the Columbia/HCA court argued that allowing the federal government a special privilege undermines the private enforcement mechanism. It stands to reason that allowing a selective waiver to federal agencies would also undermine SAG investigations.
Finally, the Columbia/HCA court questioned "[w]hether the Government should assist in obfuscating the 'truth-finding process' by entering into such confidentiality agreements at all. The investigatory agencies of the Government should act to bring to light illegal activities, not to assist wrongdoers in concealing the information from the public domain."[119] Clearly the In re Columbia/HCA decision sides with Permian and Westinghouse in valuing truthfulness over utilitarian concerns.
2. Dissent
In dissenting, Circuit Judge Boggs concluded that he would hold that there is a government investigation exception to the third-party waiver rule,[120] and that "the court's opinion . . . unnecessarily raises the cost of cooperating with a government investigation."[121] Thus the dissent, like the court in Diversified, makes a utilitarian argument: lower the transaction costs of investigation and increase societal wealth, to do otherwise increases the cost of cooperation. Circuit Judge Boggs emphasized that "the choice before this court today is not between narrower and wider disclosure, but between a disclosure only to government officials and no disclosure at all."[122]
Boggs' argument essentially boils down as follows. Noting that the majority focused on how waiver is "'unrelated to' the justification for the attorney-client privilege," of fostering frank communication between the attorney and client, Boggs questions why the waiver exceptions "need be moored to the justifications of the attorney-client privilege."[123] Boggs then makes an interesting point, stating "[t]hat a client is willing to disclose privileged information to the government at time T2 indicates very little indeed about whether she would have communicated with her attorney, absent the promise of the privilege, at time T1."[124] However, as the Thompson Memorandum and the proposed amendments to the federal sentencing guidelines for corporations reveal,[125] the doctrine of selective waiver diminishes the value of privilege overall, because in a corporate context the holder of the privilege is the corporation, not the decision-maker who chooses to investigate potential wrongdoing. Knowing that a later decision-maker may more easily waive privilege because of the reduced transaction costs associated with Boggs' approach, the decision-maker at time "T1" would be able to rely less on the value of the privilege, yielding less frank communications when they are needed most.
B. McKesson
In an attempt to influence the jurisprudence over selective waiver, the SEC has appeared as amicus curae in a number of state court cases urging that defendants who produced materials to the SEC did not waive work product privilege.[126] In one brief, the SEC argues that "[a]llowing corporations to produce work product to the Commission without waiving the protection of the work-product doctrine will serve the public interest by encouraging cooperation with the Commission in its complex enforcement investigations without causing any harm to private parties who may sue the corporation disclosing the work-product."[127]
For example, in Saito v. McKesson HBOC, the SEC began an inquiry into whether McKesson had filed false or misleading financial statements.[128],[129] After the SEC notified McKesson of the investigation, the company retained Skadden, Arps, Slate, Meagher & Flom LLP (Skadden) who conducted an investigation and prepared a written report.[130] McKesson authorized Skadden to cooperate with the SEC, provided a suitable confidentiality agreement was in place.[131] Most of Skadden's work was disclosed to the SEC and to the United States Attorney's Office after executing a confidentiality agreement (though some material was disclosed prior to the executing of the agreement).[132] The SEC accepted the offer of assistance because it believed it would expedite its investigation and would be accurate.[133] The SEC entered into two confidentiality agreements with McKesson, and McKesson gave the SEC an internal audit report and interview summaries.[134],[135] A third party filed a shareholder derivative action shortly thereafter. The company asserted the work product doctrine and the attorney-client privilege.[136]
In its brief, the SEC argued that it "enters into confidentiality agreements only when it has reason to believe that obtaining the work product will significantly improve the quality and timeliness of its investigations."[137] The SEC noted that "in one investigation the Commission benefited from obtaining work product that an accounting firm spent 29,000 hours preparing."[138] In another case it received the results of an investigation that cost $9 million. Receiving that information saved the Commission from expending similar amounts of time and resources.[139]
In Saito, the Delaware Chancery Court held that because the disclosure occurred after the execution of the confidentiality agreement, the corporation did not waive work product privilege. It reasoned that since McKesson had a reasonable expectation of privacy, it would allow selective waiver of work product and attorney-client privilege. The court stated, "[e]ncouraging corporations to disclose their internal investigations confidentially allows the SEC to resolve its investigations expeditiously and efficiently."[140] The court also noted increased protection for shareholders.[141]
Despite the logic of cases such as Permian, Westinghouse, and In re Columbia/HCA, the Delaware Chancery Court believed, like Diversified and the SEC, that efficiency is the foremost concern.
C. McKesson in the Courts of California
The saga of the McKesson case continued in the courts of California[142] and, most recently, in Georgia.[143] The California Court of Appeal noted both the possible benefits of allowing selective waiver to further the end of encouraging cooperation with the government and the concerns of Merrill Lynch, which suggested it is inappropriate for the government to be engaged in gathering information by agreeing not to share the information with shareholders who have been victimized.[144],[145] The California Court of Appeal agreed with Merrill Lynch. Constrained by the statutory nature of the attorney-client privilege in California, Presiding Justice Laurence D. Kay quickly determined that waiver of the attorney-client privilege had transpired. With regard to work product, the Court of Appeal concluded that the selective waiver theory enjoys no support in the policies of the California Legislature.[146] Similarly, the Supreme Court of Georgia held that McKesson and the SEC were adversaries at the time of disclosure and that McKesson's confidentiality agreement was too weak to support a finding of no waiver.[147]
III. Conclusion
This article began by reviewing recent events indicating that privilege law is in flux. Approaching the issue of selective waiver by looking at the different perspectives (utilitarian and moral) with which to view privilege law and waiver, the article engaged both the work product and attorney-client doctrines and reviewed both the split of authority in the federal courts and recent legislative efforts to create a doctrine of selective waiver.
The analysis started with a look at Diversified, where the Eighth Circuit Court of Appeals invoked the doctrine of limited (selective) waiver, focusing on the efficiency of government investigations. The analysis then shifted to Permian, in which the D.C. Circuit appealed to justice and the original purpose of privilege. Finally, recent cases involving selective waiver were reviewed, including In re: Columbia/HCA, in which the Sixth Circuit also focused on the idea that selective waiver does not comport with the traditional privilege justification -- encouraging frank communications. Furthermore, the Sixth Circuit noted that the creation of a doctrine of selective waiver would have the unfortunate effect of placing private litigants at a disadvantage. Here, the article argued that SAG investigations would be similarly impeded by congressional legislation creating selective waiver to the federal government, as actors would prefer federal over state agencies, because cooperating with the former would yield greater protection. Finally, the article reviewed the most recent incarnations of the selective waiver debate in the state courts of California and Georgia.
To conclude, one side of the selective waiver debate advocates the efficiency of government investigations and believes there is little cost to creation of the doctrine.[148] The other side seeks to minimize concealment of the truth.[149] This paper has taken the position that, as the First Circuit Court of Appeals stated, the selective waiver doctrine "has no logical terminus,"[150] meaning that it is likely to contribute to the erosion of privilege's value. Much appears afoot in the realm of privilege law.
[1] On January 20, 2003, Deputy Attorney General Larry D. Thompson issued a memorandum endorsing the position that prosecutors should weigh a corporation's willingness to waive privilege in "assessing the adequacy of a corporation's cooperation" with an investigation. See, Memorandum from Deputy Attorney General Larry D. Thompson, to United States Attorneys (January 20, 2003) at link (last viewed March 7, 2005).
[2] The Sentencing Guidelines were published in the Federal Register on May 19, 2004. 69 Fed. Reg. 28994. Section 8C2.5(g) "Self-Reporting, Cooperation, and Acceptance of Responsibility" provides:
(1) If the organization (A) prior to an imminent threat of disclosure or government investigation; and (B) within a reasonably prompt time after becoming aware of the offense, reported the offense to appropriate governmental authorities, fully cooperated in the investigation, and clearly demonstrated recognition and affirmative acceptance of responsibility for its criminal conduct, subtract 5 points; or
(2) If the organization fully cooperated in the investigation and clearly demonstrated recognition and affirmative acceptance of responsibility for its criminal conduct, subtract 2 points; or
Apparently there is a "developing trend, fashionable amongst Department of Justice prosecutors, to pressure a corporate target to waive its applicable attorney-client and work product privileges in order to receive a two-point culpability reduction for "active cooperation." See link (last visited March 13, 2005).
Though the commentary to Section 8C2.5(g) specifically states that waiver of privilege "is not a prerequisite to a reduction in culpability score under subsection (g)" provided "the defendant has satisfied the requirements for cooperation set forth in this Note," the commentary also provides that: "in some circumstances waiver of the attorney-client privilege and of the work product protections may be required in order to satisfy the requirements of cooperation." No further guidance is provided regarding when government might require waiver. Id.
[3] The ABA recently sent a letter regarding its concern over section 8C2.5 of the amendments to the sentencing guidelines. The letter stated:
The ABA believes that the new privilege waiver amendment, though perhaps well intentioned, will have a number of negative unintended consequences, including the likelihood that companies and other organizations will be forced to waive their attorney-client and work product protections on a routine basis. While the Commentary to Section 8C2.5 states that "waiver of attorney-client privilege and of work product protections is not a prerequisite to a reduction in culpability score [for cooperation with the government]…unless such waiver is necessary in order to provide timely and thorough disclosure of all pertinent information known to the organization," the exception is likely to swallow the rule. Now that this amendment has become effective, the Justice Department-which has followed a general policy of requiring companies to waive privileges as a sign of cooperation since the 1999 "Holder Memorandum" and the 2003 "Thompson Memorandum"-is likely to pressure companies to waive their privileges in almost all cases. Our concern is that the Justice Department, as well as other enforcement agencies, will contend that this change in the Commentary to the Guidelines provides congressional ratification of the Department's policy of routinely requiring privilege waiver."
See "Letters to the Honorable Howard Coble re: Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines", link (last viewed March 13, 2005).
[4] Another notable example of attempts to weaken privilege law include auditors' requests for access to privileged communications in the wake of the financial scandals which doomed Arthur Anderson. See, ABA Task Force on Attorney Client Privilege, Public Hearing, at http://www.abanet.org/buslaw/attorneyclient/publichearing/20050225hearing_testimony.pdf , p. 8 (2/11/2005) (last visited March 8, 2005). In addition, information disclosed by accountants to the Public Company Accounting Oversight Board is now deemed not waived with regard to third parties. 15 U.S.C. § 7215 (2005).
[6] Task Force president Bill Ide stated in a letter addressed to Task Force Members that "[t]he vigor with which the Department of Justice and the Securities and Exchange Commission have sought waiver of the Privilege in recent cases raises serious concerns that I hope we can address." See, "Welcome Letter from R. William Ide" (10/5/2004), link (last visited March 13, 2005).
[7] See, e.g, link (last visited March 13, 2005).
[8] Notably, the Task Force's mission statement notes both the increasing use of waiver and the speciousness of the accompanying confidentiality agreements. See http://www.abanet.org/buslaw/attorneyclient/ ("Moreover, while some federal agencies have entered into confidentiality agreements with the parties providing the agencies with privileged information, their effectiveness in protecting that information from further disclosure is in doubt.") (last visited March 13, 2005).
[9] XZY Corp. v. United States (In re Keeper of the Records), 2003 U.S. App. LEXIS 21388 (1st Cir. 2003) (citing, 2 Paul R. Rice, Attorney-Client Privilege in the U.S. § 9:79, at 357 (2d ed. 1999)).
[10] H.R. 2179 was entitled The Securities Fraud Deterrence and Investor Restitution Act of 2004, H.R. 2179, 108th Cong. § 4 (2004). Section 4 of H.R. 2179 would have amended Section 24 of the Securities Exchange Act of 1934 (15 U.S.C. 78x) as follows:
(e) Authority To Accept Privileged and Protected Information-
(1) Authority- Notwithstanding any other provision of law, whenever the Commission or an appropriate regulatory agency and any person agree in writing to terms pursuant to which such person will produce or disclose to the Commission or the appropriate regulatory agency any document or information that is subject to any Federal or State law privilege, or to the protection provided by the work product doctrine, such production or disclosure shall not constitute a waiver of the privilege or protection as to any person other than the Commission or the appropriate regulatory agency to which the document or information is provided. http://thomas.loc.gov/cgi-bin/query/F?c108:8:./temp/~c108w2bTHZ:e23538: (last visited March 7, 2005).
[11] According to one court, "there are two distinct types of waivers: selective and partial. Selective waiver permits the client who has disclosed privileged communications to one party to continue asserting the privilege against other parties. Partial waiver permits a client who has disclosed a portion of privileged communications to continue asserting the privilege as to the remaining portions of the same communications." Saito v. McKesson HBOC, Inc., 2002 Del. Ch. LEXIS 125, aff'd, 818 A.2d 970 (Del. 2003) (citing Westinghouse Elec. Corp. v. Philippines, 951 F.2d 1414 (3d Cir. 1992)).
[12] See, Stephen M. Cutler, Director of Enforcement, U.S. Securities & Exchange Commission, Testimony Concerning the Securities Fraud Deterrence and Investor Restitution Act, H.R. 2179, at http://www.sec.gov/news/testimony/060503tssmc.htm (June 5, 2003) (last viewed March 7, 2005). See also, http://www.sec.gov/rules/proposed/33-8150.htm, n. 76. (last modified Dec. 17, 2002).
[13] Escobedo v. Illinois, 378 U.S. 478, 489 (1964) (Goldberg, J. citing 8 Wigmore, Evidence (3d ed. 1940), 309) (emphasis in original)).
[14] Tenn. Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp. (In re Columbia/HCA), 293 F.3d 289, 294-295, 2002 FED App. 0201P (6th Cir.).
[15] Saito, 2002 Del. Ch. LEXIS 125, (citing Westinghouse Elec. Corp. v. Philippines, 951 F.2d 1414 (3d Cir. 1992)).
[16] The McKesson litigation settled on January 12, 2005. link (last visited March 20, 2005).
[21] Dean Wigmore, who is credited with articulating the traditional justification of privilege -- that privileges' benefits outweigh their costs, used a utilitarian justification. Allen, Ronald J, Richard B. Kuhns, Eleanor Swift, Evidence: Text, Problems and Cases 924 (3rd ed. 2002) (citing 8 John Henry Wigmore, Evidence § 2285, at 527 (John T. McNaughton rev. 1961)).
[22] For a critique of utilitarianism in privilege law, see David W. Louisell, 31 Tul. L. Rev. 101, 111 (1956) ("It may be that Wigmore, despite his monumental contribution to the law of privileges, has conduced to the current confusion by his emphasis on strictly utilitarian bases for the privileges -- bases which are sometimes highly conjectural and defy scientific validation.").
[23] Hazard, Geoffrey Jr. & Colin C. Tait & William A. Fletcher, Pleading and Procedure 919 (8th ed.1999). Hazard et al. note that thirty-four states have adopted the work-product doctrine verbatim, ten states have the "functional equivalent" and that California has a particularly elaborate version. Hazard at 928, citing, Calif.C.Civ.P. § 2018.
[32] Judge Wyzanski stated "(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client." Id. at 358-59.
[37] In re Columbia/HCA, 293 F.3d at 294 (citing United States v. Collis, 128 F.3d 313, 320 (6th Cir. 1997) (citing Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 1577, 48 L. Ed. 2d 39 (1975))).
[38] Id. (quoting In re Antitrust Grand Jury, 805 F.2d 155, 162 (6th Cir. 1986) (citing Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 1577, 48 L. Ed. 2d 39 (1975))).
[39] Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1126 (7th Cir. 1997) (citing United States v. Wimberly, 60 F.3d 281, 284-85 (7th Cir. 1995); In re Application of Sarrio, S.A., 119 F.3d 143, 147 (2d Cir. 1997); Texaco Puerto Rico, Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 883-84 (1st Cir. 1995)).
[40] In re Grand Jury Investigation of Ocean Transp., 604 F.2d 672, 675 (U.S. App. , 1979) (citing Underwater Storage, Inc. v. United States Rubber Co., 314 F. Supp. 546, 549 (D.D.C.1970)).
[41] See also, United States v. Rakes, 136 F.3d 1, 5 (1st Cir. 1998) ("deliberate disclosure of a privileged communication, where no privilege protects this further disclosure, waives a communications privilege.") (citing United States v. MIT, 129 F.3d 681, 684-85 (1st Cir. 1997)).
[42] XZY Corp. v. United States (In re Keeper of the Records), 2003 U.S. App. LEXIS 21388 (1st Cir. 2003) (citing United States v. Lussier, 71 F.3d 456, 462 (2d Cir. 1995)).
[43] Id. at 12 (citing Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 503.41 (Joseph M. McLaughlin ed. 1997)).
[45] See In re Columbia/HCA, 293 F.3d at 306 ("there is no compelling reason for differentiating waiver of work product from waiver of attorney-client privilege").
[46] E.g., Salomon Bros. Treasury Litig. v. Steinhardt Partners, L.P. (In re Steinhardt Partners, L.P.), 9 F.3d 230, 235 (2d Cir. 1993) (citing United States v. Nobles, 422 U.S. 225, 239; In re John Doe Corp., 675 F.2d 482, 489 (2d Cir. 1982)).
[47] XZY Corp. v. United States (In re Keeper of the Records), 2003 U.S. App. LEXIS 21388 (1st Cir. 2003) (citing, 2 Paul R. Rice, Attorney-Client Privilege in the U.S. § 9:79, at 357 (2d ed. 1999)).
[48] See, Saito, 2002 Del. Ch. LEXIS 125 ("[work product] waivers are rarely granted in Delaware because of their harsh result."). See also, Nancy Burke, Article: The Price of Cooperating with Government: Possible Waiver of Attorney-Client and Work Product Privileges, 49 Baylor L. Rev. 33, 38. Cf., In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, 860 F.2d 844 (8th Cir. 1988) (finding waiver of work product when company disclosed legal analysis to class action but attempted to withhold from the government, even though accompanied by a confidentiality agreement).
[49] The Sixth Circuit recently recognized no doctrine of selective waiver with regard to attorney-client privilege or work-product. In re Columbia/HCA, 293 F.3d at 289. In doing so they stated, "there is no compelling reason for differentiating waiver of work product from waiver of attorney-client privilege." Id. at 306.
[50] D'Ippolito v. Cities Service Co., 39 F.R.D. 610, 610 (S.D.N.Y 1965) (holding that voluntary disclosure to Department of Justice not termed interchange of information between counsel on same side of litigation, even though the government was not party to lawsuit).
[52] United States v. AT&T, 642 F.2d 1285, 1298 (D.C. Cir. 1980) (citing Stanley Works v. Haeger Potteries, Inc., 35 F.R.D. 551, 555 (N.D.Ill.1964)).
[53] See, Saito, 2002 Del. Ch. LEXIS 125 (Del. Ch., 2002) (quoting In re Steinhardt Partners, 9 F.3d 230 (2d Cir. 1993) ("the SEC stood in an adversarial position … when it requested assistance.").
[55] The Federal Circuit sided with the "no waiver" camp in Genentech, Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1420 (Fed. Cir. 1997) ("there is a minority view, albeit not followed in this court, that in certain circumstances the attorney-client privilege will survive a limited breach of confidentiality").
[58] The Fourth Circuit declined to extend the selective waiver theory of Diversified to grand jury proceedings following a SEC investigation, though embraced limited waiver as to opinion work product. In re Martin Marietta Corp., 856 F.2d 619, 623 (4th Cir. 1988); In re Weiss, 596 F.2d 1185, 1186 (4th Cir. 1979) ("[t]he Fourth Circuit has previously rejected the limited waiver concept as to the attorney-client privilege and as to non-opinion work-product. We have embraced the limited waiver concept as to opinion work-product.").
[62] United States v. Billmyer, 57 F.3d 31 (1st Cir. 1995) ("[i]f there were ever an argument for limited waiver, it might well depend importantly on just what had been disclosed to the government and on what understandings").
[63] Id.; Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1128 (7th Cir. 1997) ("[E]ven if there was some harm to these plaintiffs from the government's failing to obtain a confidentiality agreement or protective order, it would not be a sufficient harm to warrant a finding of forfeiture.").
[64] Fox v. California Sierra Financial Services, 120 F.R.D. 520, 528 (N.D. Cal. 1988). See also, McMorgan & Co. v. First Cal. Mortg., 931 F. Supp. 703, 707 (N.D. Cal. 1996).
[65] See also, United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003) (finding waiver of both the attorney-client and work product privileges), dismissed on other grounds, No. 03-10511, 2005 U.S. App. LEXIS 5237 (9th Cir. Apr. 1, 2005). See also, Jeff Chorney, Share 'Share and Share Alike' Rule Likely for Scandal Audits, The Recorder (9/16/2004).
[66] See Bittaker v. Woodford, 331 F.3d 715, 720 (9th Cir. 2003) ("Although we do not decide the case under the express waiver doctrine, we note that the law in this area is not as settled as the state would have us believe.").
[67] Id. at 299 (citing In re Grand Jury Subpoena Dated July 13, 1979, 478 F. Supp. 368, 373 (D. Wis. 1979), In re LTV Securities Litigation, 89 F.R.D. 595, 605 (N.D. Tex. 1981); Byrnes v. IDS Realty Trust, 85 F.R.D. 679, 689 (S.D.N.Y. 1980). Enron Corp. v. Borget, 1990 U.S. Dist. LEXIS 12471, No. 88 CIV. 2828 (DNE), 1990 WL 144879 (S.D.N.Y. Sept. 22, 1990).
[69] In fact, the SEC proposed similar legislation in 1984. In 1984 the Commission requested that Congress adopt a new Section 24(d) of the Securities Exchange Act authorizing a limited waiver rule, which Congress rejected. Article: Comments On Rules Implementing Section 307 of the Sarbanes-Oxley Act: Standards of Professional Conduct For Attorneys Practicing Before the SEC, 58 The Record 23, 49 (2003) (citing 16 Sec. Reg. & L. Rep. (BNA) 460 (March 2, 1984); Westinghouse Elec. Corp. v. Philippines, 951 F.2d at 1425).
[71] The stated purpose of the Sarbanes-Oxley Act is "[t]o protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities law…." Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (codified at scattered sections of 11, 15, 18, 28, and 29 U.S.C.)
[72] See Proposed Rule: Implementation of Standards of Professional Conduct for Attorneys, note 76, at http://www.sec.gov/rules/proposed/33-8150.htm (last viewed March 20, 2005).
[75] In re Columbia/HCA, 293 F.3d 289, 294-295 (citing In re M&L Business Machine Company, Inc., 161 B.R. 689, 696 (D. Col. 1993)).
[76] Eg., http://www.sec.gov/litigation/briefs/mckesson.htm (modified Nov. 20, 2001) ("if corporations waive work-product protection by producing documents to the Commission, the Commission's ability to enter into confidentiality agreements to expedite its complex investigations would be seriously compromised.").
[83] Id. Though the Eighth Circuit Court of Appeals used the word "limited," it used the meaning this paper has adopted for "selective" waiver, waiver only to one party and not the world.
[99] Id. at 1431 (holding that company waived its right to assert the work-product and attorney-client privilege when it voluntarily disclosed information to the SEC and DOJ even though it executed a confidentiality agreement before disclosure).
[101] Id. (citing Beth S. Dorris, Note: The Limited Waiver Rule: Creation of an SEC-Corporation Privilege, 36 Stan. L. Rev 789, 804 (1984)).
[135] The SEC wrote in its brief that "[i]n both confidentiality agreements, McKesson represented that the materials submitted contain and reflect communications and mental impressions protected by the attorney-client privilege and work-product doctrine. McKesson further represented that "[McKesson] has not waived, and does not intend to waive, the work-product, attorney-client, or any other applicable privilege as to any third-party." http://www.sec.gov/litigation/briefs/mckesson.htm.
Citation
U.C. Davis Bus. L.J. 14 (2005)
Vol. 5
May 2005
Page
Privilege law, a pillar of the American legal system, is in flux - especially in the context of corporate investigations. In 2003, the United States Department of Justice issued new guidelines in what has become known as the Thompson Memorandum conditioning cooperative status on waiver of privilege. The Thompson Memorandum stated that "prosecutors should consider the willingness of a corporation to waive such protection when necessary to provide timely and complete information as one factor in evaluating the corporation's cooperation."[1] Additionally, on April 30, 2004 the U.S. Sentencing Commission proposed amendments to the federal sentencing guidelines for corporations. These amendments were adopted by Congress on November 1, 2004 and may condition leniency on waiver.[2],[3] Taken together, these developments appear as part of a larger trend that diminishes the value of privilege and thereby increases cooperation.[4] Motivated by these developments and the way "government agencies . . . are overrid[ing] the privilege," on October 6, 2004, American Bar Association President Robert J. Grey Jr. created the ABA Task Force on the Attorney Client Privilege ("the Task Force")[5] to study the significance of these developments and create a response.[6]
When applied, the Thompson Memorandum guidelines appear to an attorney in the following posture. A government agency, such as the SEC or the Justice Department seeks the investigated body's cooperation, requiring waiver of privilege and full assistance. In exchange, the government agency offers leniency and provides a confidentiality agreement to protect against disclosure to third parties.[7]
Let the buyer beware.[8] Under the traditional understanding of waiver, when the subject of an investigation waives privilege to the government the privilege no longer applies as against third parties.[9] Hence, when presented with the decision of whether to comply with the government's request for waiver, subjects of an investigation must choose between cooperation and privacy. To make this decision easier, a bill introduced in the 108th Congress would have modified existing privilege law to create a doctrine of selective waiver with regard to the SEC. [10],[11],[12]
In essence, the government would create a special channel between it and subjects of investigation. Information passed along this channel would remain beyond the reach of third parties. Thus, the subject of an investigation no longer needs to choose between privacy with regard to third parties and cooperation.
This article analyzes the reasons why courts view such confidentiality agreements suspiciously and argues that attorneys, judges and lawmakers should continue to do so. As the Supreme Court once noted in the context of police interrogations, "[a]ny system of administration which permits the prosecution to trust habitually compulsory self-disclosure as a source of proof must itself suffer morally thereby."[13] In addition, creation of a legislative doctrine of federalized selective waiver would do too much to preempt State Attorney Generals (SAGs) and undermine a productive enforcement mechanism.
A brief review of recent events surrounding the doctrine of selective waiver involves its recent reexamination in a Sixth Circuit Court of Appeals case, In re Columbia/HCA.[14] To determine the wisdom of the doctrine of selective waiver, this article considers the cases of In re Columbia/HCA, Saito v. McKesson HBOC, Inc.,[15],[16] (a case in which the SEC filed an amicus brief advocating selective waiver),[17] and Diversified v. Meredith Industries,[18] the case from which the doctrine of selective waiver emerged. This article also considers two cases that were critical of Diversified, Permian Corp. v. United States [19] and Westinghouse Elec. Corp. v. Philippines.[20]
I. Doctrinal Review
A. Approaching the Issue of Selective Waiver
Attorneys, clients, and government entities interact in both adversarial and cooperative contexts. Determining where privilege begins and ends helps to define the character of these interactions. If disclosure to the government (or a specific government entity) does not forfeit privilege vis-à-vis third parties, more cooperation between the government and clients may be in order. Conversely, where disclosure waives privilege against third parties, less cooperation may result. The question of how much cooperation is "right" is to be determined by morality, economics, and legal norms (precedent).
A utilitarian answer forces us to compare societal welfare in selective waiver versus forfeiture regimes (where any voluntary disclosure results in forfeiture of privilege). If we believe that society will have more wealth with increased cooperation and less litigation, then economic rationality dictates that selective waiver is optimal. [21] Morality brings up concerns.[22] Is a society which encourages cooperation with government more or less moral? Will corporations behave more or less ethically when allowed to disclose certain issues to the government without loss of privilege to third parties?
To address these questions, some background is needed. Section B provides a brief review of the doctrines of privilege and waiver while section C provides the background of the controversy over selective waiver. Subsection 1 first illuminates the circuit court split that has emerged over the issue. Next, in subsection 2, recent legislative efforts are reviewed. Subsections 3 and 4 present the case of Diversified, (which introduced the doctrine of selective waiver) followed by two important cases which critiqued Diversified's holding.
In Section II, the more recent cases of In re Columbia/HCA and Saito v. McKesson are analyzed in greater detail in supporting the conclusion that adoption or creation of a selective waiver doctrine is unwise.
B. Brief Review of the Legal Framework of Doctrines of Privilege and Waiver
1. Privileges & Waivers
a) Work Product
When the Federal Rules of Civil Procedure (FRCP) were first promulgated in 1938, there was no provision governing the discoverability of material covered under what is now known as the "work-product" doctrine.[23] In 1947, the Supreme Court decided Hickman v. Taylor [24] and judicially created the work-product doctrine. Hickman held that discovery of the "work product" of the lawyer is impermissible because otherwise, "an attorney's thoughts … would not be his own."[25] Justice Jackson, focusing on fairness and privacy, noted that "[d]iscovery was hardly intended to enable a learned profession to perform its functions without wits or on wits borrowed from the adversary."[26] In 1970, the FRCP were amended to include the work-product doctrine.[27] FRCP 26(b)(3) provides that documents and "tangible things" prepared "in anticipation of litigation or for trial" may only be discovered if there is a "substantial need" and that the party seeking discovery would suffer "undue hardship" in obtaining the materials by other means.[28]
Though "the work product rule evolved out of civil litigation … [it] has been made applicable to criminal litigation by both statute (Rule 16(b)(2), Fed. R. Civ. P.) and court decisions (United States v. Nobles, 422 U.S. 225, 236, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975)) [and] … has also been applied to grand jury proceedings. See, In Re Grand Jury Proceedings, 473 F.2d 840 (CA 8 1974)."[29]
b) The Attorney-Client Privilege
The attorney-client privilege is the oldest of the privileges for confidential communications.[30] In United States v. United Shoe Machinery Corp. [31] Judge Wyzanski summarized the requisite elements of the attorney-client privilege, the last of which is the absence of waiver.[32] The purpose of the privilege is to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."[33] The protection of the privilege extends only to communications and not to facts.[34] The privilege also applies when the client is a corporation.[35] The attorney-client privilege "was intended as a shield, not a sword."[36] Therefore, "[c]laims of attorney-client privilege are narrowly construed because [the privilege] reduces the amount of information discoverable during the course of a lawsuit."[37] Thus, "[t]he privilege 'applies only where necessary to achieve its purpose and protects only those communications necessary to obtain legal advice.'"[38]
c) Doctrine of Waiver
Understanding the notion of selective waiver requires an understanding of the more general concept of waiver, which requires that "a privilege can be waived and, once waived, is lost."[39] The key point is that not only is the privilege lost to a party's adversary, but it is also lost to other future adversaries. Thus, selective waiver reverses the general rule; privilege would not be lost, at least not to all.
More generally, intent to waive one's privilege is not necessary for a waiver to occur. [40],[41] Thus, waiver can be express[42] or implied.[43] However, courts are cautious about finding implied waivers.[44] Waiver may be applied to both work product and attorney-client privileges.[45] Voluntary disclosure of work product to an adversary waives the privilege as to other parties.[46] This is because privileged communications disclosed to any third party destroy the confidentiality upon which the privilege is premised.[47]
Some courts appear to be more reluctant to find waivers of the work product privilege.[48] However, while there may be some difference accorded to the selective waiver doctrine as it applies to work product versus attorney-client privilege, at least one court of appeals believes the treatment should be the same.[49]
There are cases where disclosure of work product to the government waived the privilege with regard to third parties.[50] At least one case explicitly holds that in-house counsel has sufficient authority to waive the attorney-client privilege for a corporation.[51] One important exception to the doctrine of waiver is that a common interest between a "transferor" and a "transferee" creates no waiver.[52] However, when the company is the target of a government investigation, disclosure may not be considered "voluntary."[53]
C. Background of the Controversy
Split
The D.C.,[54] Federal,[55] Second,[56] Third,[57] Fourth,[58] and Sixth circuits[59] fall into the "no selective waiver" camp. The Eighth Circuit argues that there can be selective waiver without an accompanying confidentiality agreement. The Second Circuit at one time declined to adopt a "per se" rule that all voluntary disclosures to the government waive work product privilege; [60] however, it appears to have reversed itself.[61] The First[62] and Seventh Circuits made statements in dicta supporting limited waiver accompanied by confidentiality.[63] Ninth Circuit district courts, in declining to follow Diversified, stated that the privilege is waived without steps to preserve confidentiality (which might be construed as preserving the possibility).[64],[65] However, the Ninth Circuit Court of Appeals has noted that the issue still appears open.[66] Several district courts in Wisconsin, Texas and New York have followed the Diversified holding.[67]
As noted above, some courts have held that as a matter of law, there is no such thing as "selective waiver." In the 108th Congress, Section 4 of H.R. 2179 would have put an end to this dispute, at least with regard to disclosures made to the Securities and Exchange Commission (SEC).[68]
The SEC has a longstanding interest in the creation of a selective waiver doctrine.[69] In addition to giving Congressional testimony arguing for the doctrine of selective waiver in H.R. 2179, the SEC filed amicus briefs in a number of cases where selective waiver was at issue. The SEC proposed and invited comment on a rule implementing the Sarbanes-Oxley Act that purports to establish the doctrine.[70]
The SEC's interest in validating the selective waiver doctrine makes the examination of whether there should be such a doctrine even more timely and important. To put it briefly, should Section 4 of H.R 2174 have been adopted?
The financial scandals that led to the 107th Congress' passage of H.R. 3763, the Sarbanes-Oxley Act of 2002,[71] raised the importance of a simmering circuit court split over the doctrine of selective waiver. In November of that year, the SEC invited comment on a number of proposed rules. This included proposed Rule 205.3(e)(3) which stated that "[w]here an issuer, through its attorney, shares with the Commission, pursuant to a confidentiality agreement, information related to a material violation, such sharing of information shall not constitute a waiver of any otherwise applicable privilege or protection as to other persons."[72]
At the time the SEC proposed 205.3 (e)(3), it knew that there was a legal dispute over the selective waiver doctrine. The SEC noted that 205.3 (e)(3) "would set forth the Commission's position on an unsettled question: whether an issuer waives attorney-client privilege and/or other protection (such as work-product protection) by sharing with the Commission, pursuant to a confidentiality agreement, confidential information regarding misconduct by the issuer's employees or officers."[73] That is to say, that if an entity shares with the Commission some document that otherwise would be privileged, the very act of doing so may waive the privilege vis-à-vis third parties, even though the privilege is accompanied by a confidentiality agreement.
The SEC argues that selective waiver "significantly enhances the Commission's ability to conduct expeditious investigations and obtain prompt relief." Accordingly, "the Commission enters into confidentiality agreements only when it has reason to believe that obtaining the reports will allow the Commission to save substantial time and resources in conducting investigations and/or provide more prompt monetary relief to investors." Furthermore, "though the Commission must verify that internal reports are accurate and complete and must conduct its own investigation, doing so is far less time-consuming and less difficult than starting and conducting investigations without the internal reports."[74]
Controversy had been brewing amongst the circuit courts over the doctrine of selective waiver for quite some time, leading several courts to conclude that "unfortunately, the case law addressing the issue of limited waiver [is] in a state of hopeless confusion."[75]
At the very least, there exists considerable need for clarity. Uncertainty creates the risk that a company will believe a release has been made confidentially, only to learn that third parties will be able to obtain its discovery. Uncertainty may also create the risk that companies will become unwilling to cooperate with investigations, limiting the SEC's effectiveness.[76] As the U.S. Supreme Court famously put it, "[a]n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all."[77] Since the Eighth Circuit was the first court to recognize a doctrine of selective waiver in its Diversified decision, that case will be examined below.
3. Diversified
In Diversified, the defendants below, contending attorney-client privilege, petitioned the Eighth Circuit Court of Appeals to hear its writ of mandamus en banc to prevent plaintiffs below, The Weatherhead Company, from discovery of a report prepared by the law firm of Wilmer, Cutler & Pickering.[78] The SEC was conducting an investigation to determine whether Diversified established and maintained a "slush" fund to bribe agents of companies with whom Diversified dealt.[79] Weatherhead contended that any "originally existing privilege" was waived when Diversified turned the material over to the SEC without protest in response to an agency subpoena.[80] Wilmer, Cutler & Pickering had been hired by Diversified's Board of Directors to conduct an independent investigation of the allegations.[81] In Diversified, the Eight Circuit Court of Appeals held that privilege as it pertained to third parties was not waived.[82]
a) Diversified's Authority Examined
In concluding that Diversified had only made a "limited" waiver,[83] the Eighth Circuit Court of Appeals focused on the fact that the disclosure occurred in a "separate and nonpublic SEC investigation."[84] The Eighth Circuit Court of Appeals cited two cases for authority, Bucks County Bank & Trust Co. v. Storck,[85] and United States v. Goodman.[86] In BucksCounty,[87] the plaintiff sought to establish that a waiver of the attorney-client privilege had transpired based on testimony the client gave in a related case. The District Court denied the motion, stating:
Suffice it to say that testimony given by a client at a hearing, whereby the client defendant by motion seeks the return of property taken from him by an alleged illegal search and seizure, is given for the purpose of such motion, alone, and does not constitute a general waiver of privilege by the client defendant, and it is equally clear that such evidence is not usable against the defendant even in the criminal case in chief in connection with which a return of property or suppression of evidence is sought.[88]
This is scant authority, whose application seems far removed from the facts of Diversified. Note that in juxtaposition to Diversified, the rationale is primarily moral. In Bucks County, the court simply held that when a defendant's testimony is used to determine whether property was illegally taken, it does not waive privilege in later proceedings.
In Goodman, the appellant asserted that the court below erred in denying his Fifth Amendment claim of privilege.[89] The government suggested that Goodman's disclosure to federal agents in 1950 constituted a waiver of his Fifth Amendment privilege.[90] The court found that "[i]t has been uniformly held that a prior disclosure to investigation officials cannot constitute a waiver of the privilege with respect to the same matter in a subsequent legal proceeding. A waiver of the privilege must occur in the same proceeding in which it is sought to be invoked."[91] Again, this authority, involving a Fifth Amendment case holding that a waiver must occur in the same proceeding, appears rather weak and not clearly applicable to Diversified.
Yet despite the weakness of its authority, the Diversified court provided at least one (debatably) solid public policy reason for its holding - the efficiency of investigation.[92] Diversified stated "[t]o hold otherwise may have the effect of thwarting the developing procedure of corporations to employ independent outside counsel to investigate and advise them in order to protect stockholders, potential stockholders and customers."[93] Though the Diversified court did not go further in mentioning the efficiency of government investigations, later courts, and the SEC itself, have taken this position.[94] However, the proposition that efficiency trumps truthfulness requires further analysis. Hence, we turn to two cases critical of Diversified.
4. Permian & Westinghouse: Important Critiques of Diversified
Permian provides an important critique of Diversified. The Permian court found "that the attorney-client privilege should be available only at the traditional price: a litigant who wishes to assert confidentiality must maintain genuine confidentiality."[95] As distinguished from Diversified's rationale, the Permian court made a fundamentally moral argument, an appeal to justice:
The client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others, or to invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit.[96]
Permian rested upon the observation that selective waiver has little to do with the privilege's purpose of "protecting the confidentiality of attorney-client communications in order to encourage clients to obtain informed legal assistance.[97] Thus, Permian reflects a moral, rather than utilitarian, sensibility.
Westinghouse Elec. Corp. v. Republic of Philippines[98] is another important case that considered, and ultimately rejected, Diversified's holding. In Westinghouse, the Third Circuit Court of Appeals held that there is no selective waiver for either attorney-client or work product.[99] The Westinghouse court reasoned similarly to Permian in stating that:
The traditional waiver doctrine provides that disclosure to third parties waives the attorney-client privilege unless the disclosure serves the purpose of enabling clients to obtain informed legal advice. Because the selective waiver rule in Diversified protects disclosures made for entirely different purposes, it cannot be reconciled with traditional attorney-client privilege doctrine.[100]
Thus Westinghouse also articulated a central reason why courts have rejected the selective waiver doctrine. Disclosures to governmental agencies do not "fit" into traditional exceptions to the waiver of privilege, which reflect moral concerns. Though disagreeing with Diversified's holding, Westinghouse differs from Permian by also articulating that the central reason for allowing selective waiver is to "encourage[] voluntary disclosure to government agencies," an efficiency argument, which the dissent in In re Columbia/HCA and the SEC concurred with.[101]
Thus far, two distinct perspectives emerge, those who see selective waiver in terms of efficiency and those who see it as an impediment to truthfulness. The next section closely reviews recent case law in evaluating the pros and cons of selective waiver.
II. Recent Cases
A. In re Columbia/HCA: A Recent Case Contrary to Diversified
An important and recent examination of Diversified's selective waiver doctrine emerged in a case before the Sixth Circuit Court of Appeals, In re Columbia/HCA.[102] Since the SEC used Columbia/HCA's holding as evidence that it needs validation of the selective waiver doctrine (both in amicus briefs and in congressional testimony given by the SEC's director of enforcement) the next section of this paper analyzes Columbia/ HCA's facts, its use of authority, the public policies implicated, and the dissent.[103]
1. Columbia/HCA's Facts and Holding
Columbia/HCA, a healthcare corporation, agreed to produce audits to the Department of Justice (DOJ) contingent on strict confidentiality.[104] DOJ and Columbia/HCA reached a settlement.[105] When third parties became aware of the results of the DOJ investigation, they filed lawsuits seeking to discover the audits.[106] Columbia/HCA invoked both work product and attorney-client privileges,[107] arguing that it did not waive privilege in accord with the principles expressed in Diversified.[108] The court below granted a motion to compel disclosure.[109] The Sixth Circuit Court of Appeals affirmed the lower court's holding that by voluntarily producing documents to the DOJ, Columbia/HCA waived both its attorney-client and work product privileges.[110]
In reviewing the reasons for and against the selective waiver doctrine, the Columbia/HCA court began by noting that "the uninhibited approach adopted out of wholecloth by the Diversified court has little, if any, relation to fostering frank communication between a client and his or her attorney."[111] Thus, the Sixth Circuit immediately identified the public policy behind the privilege - fostering frank communication. As the Sixth Circuit explained, "any form of selective waiver, even that which stems from a confidentiality agreement, transforms the attorney-client privilege into merely another brush on an attorney's palette, utilized and manipulated to gain tactical or strategic advantage."[112] Nor did the majority believe that contractual principles should control, because the attorney-client privilege "is not a creature of contract, arranged between parties to suit the whim of the moment."[113]
Despite noting the "considerable appeal, and justification, for permitting selective waiver when the initial disclosure is to an investigating arm of the Government,"[114] the Columbia/HCA court stated that this rationale "has no logical terminus"[115] and that in the "truth-finding process ... a private litigant stands in nearly the same stead as the Government."[116] According to the Columbia/HCA court, "a plaintiff in a shareholder derivative action or a qui tam action who exposes accounting and tax fraud provides as much service to the 'truth finding process' as an SEC investigator."[117] Thus, the Sixth Circuit Court of Appeals valued truthfulness over the efficiency of investigations. Furthermore, the Sixth Circuit believed that the best path to truthfulness may not be thorough federal oversight because "litigants act as private attorneys general, and through their actions vindicate the public interest."[118] Thus, the Columbia/HCA court argued that allowing the federal government a special privilege undermines the private enforcement mechanism. It stands to reason that allowing a selective waiver to federal agencies would also undermine SAG investigations.
Finally, the Columbia/HCA court questioned "[w]hether the Government should assist in obfuscating the 'truth-finding process' by entering into such confidentiality agreements at all. The investigatory agencies of the Government should act to bring to light illegal activities, not to assist wrongdoers in concealing the information from the public domain."[119] Clearly the In re Columbia/HCA decision sides with Permian and Westinghouse in valuing truthfulness over utilitarian concerns.
2. Dissent
In dissenting, Circuit Judge Boggs concluded that he would hold that there is a government investigation exception to the third-party waiver rule,[120] and that "the court's opinion . . . unnecessarily raises the cost of cooperating with a government investigation."[121] Thus the dissent, like the court in Diversified, makes a utilitarian argument: lower the transaction costs of investigation and increase societal wealth, to do otherwise increases the cost of cooperation. Circuit Judge Boggs emphasized that "the choice before this court today is not between narrower and wider disclosure, but between a disclosure only to government officials and no disclosure at all."[122]
Boggs' argument essentially boils down as follows. Noting that the majority focused on how waiver is "'unrelated to' the justification for the attorney-client privilege," of fostering frank communication between the attorney and client, Boggs questions why the waiver exceptions "need be moored to the justifications of the attorney-client privilege."[123] Boggs then makes an interesting point, stating "[t]hat a client is willing to disclose privileged information to the government at time T2 indicates very little indeed about whether she would have communicated with her attorney, absent the promise of the privilege, at time T1."[124] However, as the Thompson Memorandum and the proposed amendments to the federal sentencing guidelines for corporations reveal,[125] the doctrine of selective waiver diminishes the value of privilege overall, because in a corporate context the holder of the privilege is the corporation, not the decision-maker who chooses to investigate potential wrongdoing. Knowing that a later decision-maker may more easily waive privilege because of the reduced transaction costs associated with Boggs' approach, the decision-maker at time "T1" would be able to rely less on the value of the privilege, yielding less frank communications when they are needed most.
B. McKesson
In an attempt to influence the jurisprudence over selective waiver, the SEC has appeared as amicus curae in a number of state court cases urging that defendants who produced materials to the SEC did not waive work product privilege.[126] In one brief, the SEC argues that "[a]llowing corporations to produce work product to the Commission without waiving the protection of the work-product doctrine will serve the public interest by encouraging cooperation with the Commission in its complex enforcement investigations without causing any harm to private parties who may sue the corporation disclosing the work-product."[127]
For example, in Saito v. McKesson HBOC, the SEC began an inquiry into whether McKesson had filed false or misleading financial statements.[128],[129] After the SEC notified McKesson of the investigation, the company retained Skadden, Arps, Slate, Meagher & Flom LLP (Skadden) who conducted an investigation and prepared a written report.[130] McKesson authorized Skadden to cooperate with the SEC, provided a suitable confidentiality agreement was in place.[131] Most of Skadden's work was disclosed to the SEC and to the United States Attorney's Office after executing a confidentiality agreement (though some material was disclosed prior to the executing of the agreement).[132] The SEC accepted the offer of assistance because it believed it would expedite its investigation and would be accurate.[133] The SEC entered into two confidentiality agreements with McKesson, and McKesson gave the SEC an internal audit report and interview summaries.[134],[135] A third party filed a shareholder derivative action shortly thereafter. The company asserted the work product doctrine and the attorney-client privilege.[136]
In its brief, the SEC argued that it "enters into confidentiality agreements only when it has reason to believe that obtaining the work product will significantly improve the quality and timeliness of its investigations."[137] The SEC noted that "in one investigation the Commission benefited from obtaining work product that an accounting firm spent 29,000 hours preparing."[138] In another case it received the results of an investigation that cost $9 million. Receiving that information saved the Commission from expending similar amounts of time and resources.[139]
In Saito, the Delaware Chancery Court held that because the disclosure occurred after the execution of the confidentiality agreement, the corporation did not waive work product privilege. It reasoned that since McKesson had a reasonable expectation of privacy, it would allow selective waiver of work product and attorney-client privilege. The court stated, "[e]ncouraging corporations to disclose their internal investigations confidentially allows the SEC to resolve its investigations expeditiously and efficiently."[140] The court also noted increased protection for shareholders.[141]
Despite the logic of cases such as Permian, Westinghouse, and In re Columbia/HCA, the Delaware Chancery Court believed, like Diversified and the SEC, that efficiency is the foremost concern.
C. McKesson in the Courts of California
The saga of the McKesson case continued in the courts of California[142] and, most recently, in Georgia.[143] The California Court of Appeal noted both the possible benefits of allowing selective waiver to further the end of encouraging cooperation with the government and the concerns of Merrill Lynch, which suggested it is inappropriate for the government to be engaged in gathering information by agreeing not to share the information with shareholders who have been victimized.[144],[145] The California Court of Appeal agreed with Merrill Lynch. Constrained by the statutory nature of the attorney-client privilege in California, Presiding Justice Laurence D. Kay quickly determined that waiver of the attorney-client privilege had transpired. With regard to work product, the Court of Appeal concluded that the selective waiver theory enjoys no support in the policies of the California Legislature.[146] Similarly, the Supreme Court of Georgia held that McKesson and the SEC were adversaries at the time of disclosure and that McKesson's confidentiality agreement was too weak to support a finding of no waiver.[147]
III. Conclusion
This article began by reviewing recent events indicating that privilege law is in flux. Approaching the issue of selective waiver by looking at the different perspectives (utilitarian and moral) with which to view privilege law and waiver, the article engaged both the work product and attorney-client doctrines and reviewed both the split of authority in the federal courts and recent legislative efforts to create a doctrine of selective waiver.
The analysis started with a look at Diversified, where the Eighth Circuit Court of Appeals invoked the doctrine of limited (selective) waiver, focusing on the efficiency of government investigations. The analysis then shifted to Permian, in which the D.C. Circuit appealed to justice and the original purpose of privilege. Finally, recent cases involving selective waiver were reviewed, including In re: Columbia/HCA, in which the Sixth Circuit also focused on the idea that selective waiver does not comport with the traditional privilege justification -- encouraging frank communications. Furthermore, the Sixth Circuit noted that the creation of a doctrine of selective waiver would have the unfortunate effect of placing private litigants at a disadvantage. Here, the article argued that SAG investigations would be similarly impeded by congressional legislation creating selective waiver to the federal government, as actors would prefer federal over state agencies, because cooperating with the former would yield greater protection. Finally, the article reviewed the most recent incarnations of the selective waiver debate in the state courts of California and Georgia.
To conclude, one side of the selective waiver debate advocates the efficiency of government investigations and believes there is little cost to creation of the doctrine.[148] The other side seeks to minimize concealment of the truth.[149] This paper has taken the position that, as the First Circuit Court of Appeals stated, the selective waiver doctrine "has no logical terminus,"[150] meaning that it is likely to contribute to the erosion of privilege's value. Much appears afoot in the realm of privilege law.
[1] On January 20, 2003, Deputy Attorney General Larry D. Thompson issued a memorandum endorsing the position that prosecutors should weigh a corporation's willingness to waive privilege in "assessing the adequacy of a corporation's cooperation" with an investigation. See, Memorandum from Deputy Attorney General Larry D. Thompson, to United States Attorneys (January 20, 2003) at link (last viewed March 7, 2005).
[2] The Sentencing Guidelines were published in the Federal Register on May 19, 2004. 69 Fed. Reg. 28994. Section 8C2.5(g) "Self-Reporting, Cooperation, and Acceptance of Responsibility" provides:
(1) If the organization (A) prior to an imminent threat of disclosure or government investigation; and (B) within a reasonably prompt time after becoming aware of the offense, reported the offense to appropriate governmental authorities, fully cooperated in the investigation, and clearly demonstrated recognition and affirmative acceptance of responsibility for its criminal conduct, subtract 5 points; or
(2) If the organization fully cooperated in the investigation and clearly demonstrated recognition and affirmative acceptance of responsibility for its criminal conduct, subtract 2 points; or
Apparently there is a "developing trend, fashionable amongst Department of Justice prosecutors, to pressure a corporate target to waive its applicable attorney-client and work product privileges in order to receive a two-point culpability reduction for "active cooperation." See link (last visited March 13, 2005).
Though the commentary to Section 8C2.5(g) specifically states that waiver of privilege "is not a prerequisite to a reduction in culpability score under subsection (g)" provided "the defendant has satisfied the requirements for cooperation set forth in this Note," the commentary also provides that: "in some circumstances waiver of the attorney-client privilege and of the work product protections may be required in order to satisfy the requirements of cooperation." No further guidance is provided regarding when government might require waiver. Id.
[3] The ABA recently sent a letter regarding its concern over section 8C2.5 of the amendments to the sentencing guidelines. The letter stated:
The ABA believes that the new privilege waiver amendment, though perhaps well intentioned, will have a number of negative unintended consequences, including the likelihood that companies and other organizations will be forced to waive their attorney-client and work product protections on a routine basis. While the Commentary to Section 8C2.5 states that "waiver of attorney-client privilege and of work product protections is not a prerequisite to a reduction in culpability score [for cooperation with the government]…unless such waiver is necessary in order to provide timely and thorough disclosure of all pertinent information known to the organization," the exception is likely to swallow the rule. Now that this amendment has become effective, the Justice Department-which has followed a general policy of requiring companies to waive privileges as a sign of cooperation since the 1999 "Holder Memorandum" and the 2003 "Thompson Memorandum"-is likely to pressure companies to waive their privileges in almost all cases. Our concern is that the Justice Department, as well as other enforcement agencies, will contend that this change in the Commentary to the Guidelines provides congressional ratification of the Department's policy of routinely requiring privilege waiver."
See "Letters to the Honorable Howard Coble re: Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines", link (last viewed March 13, 2005).
[4] Another notable example of attempts to weaken privilege law include auditors' requests for access to privileged communications in the wake of the financial scandals which doomed Arthur Anderson. See, ABA Task Force on Attorney Client Privilege, Public Hearing, at http://www.abanet.org/buslaw/attorneyclient/publichearing/20050225hearing_testimony.pdf , p. 8 (2/11/2005) (last visited March 8, 2005). In addition, information disclosed by accountants to the Public Company Accounting Oversight Board is now deemed not waived with regard to third parties. 15 U.S.C. § 7215 (2005).
[6] Task Force president Bill Ide stated in a letter addressed to Task Force Members that "[t]he vigor with which the Department of Justice and the Securities and Exchange Commission have sought waiver of the Privilege in recent cases raises serious concerns that I hope we can address." See, "Welcome Letter from R. William Ide" (10/5/2004), link (last visited March 13, 2005).
[7] See, e.g, link (last visited March 13, 2005).
[8] Notably, the Task Force's mission statement notes both the increasing use of waiver and the speciousness of the accompanying confidentiality agreements. See http://www.abanet.org/buslaw/attorneyclient/ ("Moreover, while some federal agencies have entered into confidentiality agreements with the parties providing the agencies with privileged information, their effectiveness in protecting that information from further disclosure is in doubt.") (last visited March 13, 2005).
[9] XZY Corp. v. United States (In re Keeper of the Records), 2003 U.S. App. LEXIS 21388 (1st Cir. 2003) (citing, 2 Paul R. Rice, Attorney-Client Privilege in the U.S. § 9:79, at 357 (2d ed. 1999)).
[10] H.R. 2179 was entitled The Securities Fraud Deterrence and Investor Restitution Act of 2004, H.R. 2179, 108th Cong. § 4 (2004). Section 4 of H.R. 2179 would have amended Section 24 of the Securities Exchange Act of 1934 (15 U.S.C. 78x) as follows:
(e) Authority To Accept Privileged and Protected Information-
(1) Authority- Notwithstanding any other provision of law, whenever the Commission or an appropriate regulatory agency and any person agree in writing to terms pursuant to which such person will produce or disclose to the Commission or the appropriate regulatory agency any document or information that is subject to any Federal or State law privilege, or to the protection provided by the work product doctrine, such production or disclosure shall not constitute a waiver of the privilege or protection as to any person other than the Commission or the appropriate regulatory agency to which the document or information is provided. http://thomas.loc.gov/cgi-bin/query/F?c108:8:./temp/~c108w2bTHZ:e23538: (last visited March 7, 2005).
[11] According to one court, "there are two distinct types of waivers: selective and partial. Selective waiver permits the client who has disclosed privileged communications to one party to continue asserting the privilege against other parties. Partial waiver permits a client who has disclosed a portion of privileged communications to continue asserting the privilege as to the remaining portions of the same communications." Saito v. McKesson HBOC, Inc., 2002 Del. Ch. LEXIS 125, aff'd, 818 A.2d 970 (Del. 2003) (citing Westinghouse Elec. Corp. v. Philippines, 951 F.2d 1414 (3d Cir. 1992)).
[12] See, Stephen M. Cutler, Director of Enforcement, U.S. Securities & Exchange Commission, Testimony Concerning the Securities Fraud Deterrence and Investor Restitution Act, H.R. 2179, at http://www.sec.gov/news/testimony/060503tssmc.htm (June 5, 2003) (last viewed March 7, 2005). See also, http://www.sec.gov/rules/proposed/33-8150.htm, n. 76. (last modified Dec. 17, 2002).
[13] Escobedo v. Illinois, 378 U.S. 478, 489 (1964) (Goldberg, J. citing 8 Wigmore, Evidence (3d ed. 1940), 309) (emphasis in original)).
[14] Tenn. Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp. (In re Columbia/HCA), 293 F.3d 289, 294-295, 2002 FED App. 0201P (6th Cir.).
[15] Saito, 2002 Del. Ch. LEXIS 125, (citing Westinghouse Elec. Corp. v. Philippines, 951 F.2d 1414 (3d Cir. 1992)).
[16] The McKesson litigation settled on January 12, 2005. link (last visited March 20, 2005).
[21] Dean Wigmore, who is credited with articulating the traditional justification of privilege -- that privileges' benefits outweigh their costs, used a utilitarian justification. Allen, Ronald J, Richard B. Kuhns, Eleanor Swift, Evidence: Text, Problems and Cases 924 (3rd ed. 2002) (citing 8 John Henry Wigmore, Evidence § 2285, at 527 (John T. McNaughton rev. 1961)).
[22] For a critique of utilitarianism in privilege law, see David W. Louisell, 31 Tul. L. Rev. 101, 111 (1956) ("It may be that Wigmore, despite his monumental contribution to the law of privileges, has conduced to the current confusion by his emphasis on strictly utilitarian bases for the privileges -- bases which are sometimes highly conjectural and defy scientific validation.").
[23] Hazard, Geoffrey Jr. & Colin C. Tait & William A. Fletcher, Pleading and Procedure 919 (8th ed.1999). Hazard et al. note that thirty-four states have adopted the work-product doctrine verbatim, ten states have the "functional equivalent" and that California has a particularly elaborate version. Hazard at 928, citing, Calif.C.Civ.P. § 2018.
[32] Judge Wyzanski stated "(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client." Id. at 358-59.
[37] In re Columbia/HCA, 293 F.3d at 294 (citing United States v. Collis, 128 F.3d 313, 320 (6th Cir. 1997) (citing Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 1577, 48 L. Ed. 2d 39 (1975))).
[38] Id. (quoting In re Antitrust Grand Jury, 805 F.2d 155, 162 (6th Cir. 1986) (citing Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 1577, 48 L. Ed. 2d 39 (1975))).
[39] Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1126 (7th Cir. 1997) (citing United States v. Wimberly, 60 F.3d 281, 284-85 (7th Cir. 1995); In re Application of Sarrio, S.A., 119 F.3d 143, 147 (2d Cir. 1997); Texaco Puerto Rico, Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 883-84 (1st Cir. 1995)).
[40] In re Grand Jury Investigation of Ocean Transp., 604 F.2d 672, 675 (U.S. App. , 1979) (citing Underwater Storage, Inc. v. United States Rubber Co., 314 F. Supp. 546, 549 (D.D.C.1970)).
[41] See also, United States v. Rakes, 136 F.3d 1, 5 (1st Cir. 1998) ("deliberate disclosure of a privileged communication, where no privilege protects this further disclosure, waives a communications privilege.") (citing United States v. MIT, 129 F.3d 681, 684-85 (1st Cir. 1997)).
[42] XZY Corp. v. United States (In re Keeper of the Records), 2003 U.S. App. LEXIS 21388 (1st Cir. 2003) (citing United States v. Lussier, 71 F.3d 456, 462 (2d Cir. 1995)).
[43] Id. at 12 (citing Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 503.41 (Joseph M. McLaughlin ed. 1997)).
[45] See In re Columbia/HCA, 293 F.3d at 306 ("there is no compelling reason for differentiating waiver of work product from waiver of attorney-client privilege").
[46] E.g., Salomon Bros. Treasury Litig. v. Steinhardt Partners, L.P. (In re Steinhardt Partners, L.P.), 9 F.3d 230, 235 (2d Cir. 1993) (citing United States v. Nobles, 422 U.S. 225, 239; In re John Doe Corp., 675 F.2d 482, 489 (2d Cir. 1982)).
[47] XZY Corp. v. United States (In re Keeper of the Records), 2003 U.S. App. LEXIS 21388 (1st Cir. 2003) (citing, 2 Paul R. Rice, Attorney-Client Privilege in the U.S. § 9:79, at 357 (2d ed. 1999)).
[48] See, Saito, 2002 Del. Ch. LEXIS 125 ("[work product] waivers are rarely granted in Delaware because of their harsh result."). See also, Nancy Burke, Article: The Price of Cooperating with Government: Possible Waiver of Attorney-Client and Work Product Privileges, 49 Baylor L. Rev. 33, 38. Cf., In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, 860 F.2d 844 (8th Cir. 1988) (finding waiver of work product when company disclosed legal analysis to class action but attempted to withhold from the government, even though accompanied by a confidentiality agreement).
[49] The Sixth Circuit recently recognized no doctrine of selective waiver with regard to attorney-client privilege or work-product. In re Columbia/HCA, 293 F.3d at 289. In doing so they stated, "there is no compelling reason for differentiating waiver of work product from waiver of attorney-client privilege." Id. at 306.
[50] D'Ippolito v. Cities Service Co., 39 F.R.D. 610, 610 (S.D.N.Y 1965) (holding that voluntary disclosure to Department of Justice not termed interchange of information between counsel on same side of litigation, even though the government was not party to lawsuit).
[52] United States v. AT&T, 642 F.2d 1285, 1298 (D.C. Cir. 1980) (citing Stanley Works v. Haeger Potteries, Inc., 35 F.R.D. 551, 555 (N.D.Ill.1964)).
[53] See, Saito, 2002 Del. Ch. LEXIS 125 (Del. Ch., 2002) (quoting In re Steinhardt Partners, 9 F.3d 230 (2d Cir. 1993) ("the SEC stood in an adversarial position … when it requested assistance.").
[55] The Federal Circuit sided with the "no waiver" camp in Genentech, Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1420 (Fed. Cir. 1997) ("there is a minority view, albeit not followed in this court, that in certain circumstances the attorney-client privilege will survive a limited breach of confidentiality").
[58] The Fourth Circuit declined to extend the selective waiver theory of Diversified to grand jury proceedings following a SEC investigation, though embraced limited waiver as to opinion work product. In re Martin Marietta Corp., 856 F.2d 619, 623 (4th Cir. 1988); In re Weiss, 596 F.2d 1185, 1186 (4th Cir. 1979) ("[t]he Fourth Circuit has previously rejected the limited waiver concept as to the attorney-client privilege and as to non-opinion work-product. We have embraced the limited waiver concept as to opinion work-product.").
[62] United States v. Billmyer, 57 F.3d 31 (1st Cir. 1995) ("[i]f there were ever an argument for limited waiver, it might well depend importantly on just what had been disclosed to the government and on what understandings").
[63] Id.; Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1128 (7th Cir. 1997) ("[E]ven if there was some harm to these plaintiffs from the government's failing to obtain a confidentiality agreement or protective order, it would not be a sufficient harm to warrant a finding of forfeiture.").
[64] Fox v. California Sierra Financial Services, 120 F.R.D. 520, 528 (N.D. Cal. 1988). See also, McMorgan & Co. v. First Cal. Mortg., 931 F. Supp. 703, 707 (N.D. Cal. 1996).
[65] See also, United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003) (finding waiver of both the attorney-client and work product privileges), dismissed on other grounds, No. 03-10511, 2005 U.S. App. LEXIS 5237 (9th Cir. Apr. 1, 2005). See also, Jeff Chorney, Share 'Share and Share Alike' Rule Likely for Scandal Audits, The Recorder (9/16/2004).
[66] See Bittaker v. Woodford, 331 F.3d 715, 720 (9th Cir. 2003) ("Although we do not decide the case under the express waiver doctrine, we note that the law in this area is not as settled as the state would have us believe.").
[67] Id. at 299 (citing In re Grand Jury Subpoena Dated July 13, 1979, 478 F. Supp. 368, 373 (D. Wis. 1979), In re LTV Securities Litigation, 89 F.R.D. 595, 605 (N.D. Tex. 1981); Byrnes v. IDS Realty Trust, 85 F.R.D. 679, 689 (S.D.N.Y. 1980). Enron Corp. v. Borget, 1990 U.S. Dist. LEXIS 12471, No. 88 CIV. 2828 (DNE), 1990 WL 144879 (S.D.N.Y. Sept. 22, 1990).
[69] In fact, the SEC proposed similar legislation in 1984. In 1984 the Commission requested that Congress adopt a new Section 24(d) of the Securities Exchange Act authorizing a limited waiver rule, which Congress rejected. Article: Comments On Rules Implementing Section 307 of the Sarbanes-Oxley Act: Standards of Professional Conduct For Attorneys Practicing Before the SEC, 58 The Record 23, 49 (2003) (citing 16 Sec. Reg. & L. Rep. (BNA) 460 (March 2, 1984); Westinghouse Elec. Corp. v. Philippines, 951 F.2d at 1425).
[71] The stated purpose of the Sarbanes-Oxley Act is "[t]o protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities law…." Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (codified at scattered sections of 11, 15, 18, 28, and 29 U.S.C.)
[72] See Proposed Rule: Implementation of Standards of Professional Conduct for Attorneys, note 76, at http://www.sec.gov/rules/proposed/33-8150.htm (last viewed March 20, 2005).
[75] In re Columbia/HCA, 293 F.3d 289, 294-295 (citing In re M&L Business Machine Company, Inc., 161 B.R. 689, 696 (D. Col. 1993)).
[76] Eg., http://www.sec.gov/litigation/briefs/mckesson.htm (modified Nov. 20, 2001) ("if corporations waive work-product protection by producing documents to the Commission, the Commission's ability to enter into confidentiality agreements to expedite its complex investigations would be seriously compromised.").
[83] Id. Though the Eighth Circuit Court of Appeals used the word "limited," it used the meaning this paper has adopted for "selective" waiver, waiver only to one party and not the world.
[99] Id. at 1431 (holding that company waived its right to assert the work-product and attorney-client privilege when it voluntarily disclosed information to the SEC and DOJ even though it executed a confidentiality agreement before disclosure).
[101] Id. (citing Beth S. Dorris, Note: The Limited Waiver Rule: Creation of an SEC-Corporation Privilege, 36 Stan. L. Rev 789, 804 (1984)).
[135] The SEC wrote in its brief that "[i]n both confidentiality agreements, McKesson represented that the materials submitted contain and reflect communications and mental impressions protected by the attorney-client privilege and work-product doctrine. McKesson further represented that "[McKesson] has not waived, and does not intend to waive, the work-product, attorney-client, or any other applicable privilege as to any third-party." http://www.sec.gov/litigation/briefs/mckesson.htm.
Citation
U.C. Davis Bus. L.J. 14 (2005)