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The Selective-Waiver Doctrine: Is It Still Alive?

By Jonathan S. Feld and Blake Mills

The attorney-client privilege is sacrosanct in our criminal-justice process. Its confidentiality protections are fundamental to effective representation. Yet in recent years, the attorney-client privilege and government demands for its waiver have become a controversial topic affecting companies seeking the benefits of cooperation in criminal investigations. Both the courts and Congress have struggled to determine what actions constitute a waiver of the privilege and to what extent. Meanwhile, corporations have had to balance the benefits of disclosing privileged information to government investigators against the risk of dramatic adverse consequences in parallel litigation and investigations.

Throughout this debate, the “selective-waiver doctrine” has been trumpeted by some as a compromise solution, although it has been rejected by U.S. courts. While a July 2008 California state court decision and proposed changes to the Federal Rules of Evidence each had the potential to give the doctrine new vitality, neither was ultimately successful. Nonetheless, they may be a signal of renewed interest in the doctrine.

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