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The Growing Risk of Providing Oral Summaries
In December 2017, a Magistrate Judge of the U.S. District Court for the Southern District of Florida held that an “oral download” of outside counsel's interview notes to the Securities and Exchange Commission (SEC) resulted in a limited waiver of protection under the attorney work-product doctrine over the underlying interview notes and memoranda. Order on Defendants' Motion to Compel Production from Non-Party Law Firm, SEC v. Herrera, et al., No. 17- 20301 (S.D. Fl. Dec. 5, 2017). The decision is a significant one, and underscores one of the core challenges facing companies seeking to cooperate with the government during the course of its investigations — namely, the delicate balance between seeking to maximize its potential to receive cooperation credit while avoiding an actual waiver of attorney-client or work-product privileges.
In light of the government's profound emphasis on cooperation — and, as a corollary, a company's overwhelming incentive to take a posture of full cooperation — a balance is becoming even more difficult to strike. In response, companies and their outside counsel often relyupon oral summaries in order to disclose factual information to the investigating agency. Given that Herrera now stands for the proposition that such acts may amount to waiver, the decision may serve to reshape the manner in which companies disclose certain findings of its internal interviews.
The Herrera Decision
In 2012, a company retained an outside law firm (the Firm) to provide legal advice concerning alleged accounting errors in its South American subsidiary (the Subsidiary). The Firm commenced an internal investigation and, at its close, informed the SEC of the investigation, upon which the SEC determined to open its own investigation. During the course of the SEC's investigation, the Firm met with SEC staff and provided oral briefings of 12 witness interviews.
Upon reaching a settlement with the company, the SEC filed a civil action against three of its former directors, alleging, in part, that the defendants concealed the manipulation of the Subsidiary's accounting system. SEC Charges Former Executives of Wire and Cable Company with Financial Fraud, Litigation Release, SEC (Jan. 25, 2017). In mounting their defense, the defendants subpoenaed the Firm for copies of the witness interview memoranda and corresponding attorney notes. The Firm declined to produce the documents, claiming that they were protected by the work-product doctrine.
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