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Business Crimes BulletinFeaturesRegulationWhite Collar Crime

Being Selective: How Companies May Best Protect Privilege When Cooperating With a Government Investigation

By Jonathan B. New, Patrick T. Campbell and Francesca Rogo
December 01, 2021

In the past few months, the U.S. Department of Justice (DOJ) has placed a renewed emphasis on corporate accountability.  Particularly, it has announced exacting new disclosure requirements for companies to receive cooperation credit in any government investigation.  While the DOJ does not require the disclosure of privileged materials for cooperation credit, and will not explicitly ask for a waiver, there is often a tension as to where companies may draw the line.

This article explores a key consideration for companies under government investigation: whether voluntary disclosure of privileged information in an effort to obtain cooperation credit waives the privilege vis-à-vis third parties in subsequent litigation.  Given the prevalence of follow-on civil litigation for certain types of investigations, the ability to preserve the privilege under the "selective waiver doctrine" may be of critical importance.  This article analyzes various views on the selective waiver doctrine by federal courts in different jurisdictions and offers best practices for cooperating with the government in a manner that best protects the privilege.

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