The Injustice in White-Collar Cases from Selectively Waiving Attorney-Client Privilege, as Shown by Mckesson
10 Pages Posted: 30 Jan 2006
Date Written: January 29, 2006
The attorney-client privilege protects communications between a client and his attorney, so that other litigants cannot demand these e-mails, letters, and so on through the pre-trial process of discovery. This privilege is ordinarily waived, however, if the client leaks such a document to a third party. Anybody else in litigation against the client can then demand a copy of the document for himself. There is, however, a little-known exception called the selective waiver doctrine, where privileged documents can be turned over to the government without making them available to other litigants. In theory it encourages companies under investigation by the federal government to cooperate by turning over confidential documents without fear of being sued by private civil plaintiffs on those same smoking gun documents.
But more realistically the selective waiver keeps defense materials away from white-collar defendants, such as mid-level and senior executives, who need those documents to prove their innocence. Private civil plaintiffs can choose their jurisdiction to avoid the selective waiver doctrine, as only a minority of state and federal jurisdictions has adopted it. Criminal defendants on the other hand do not have that luxury because it is not they but prosecutors who choose where to bring charges.
The problem of forum shopping was dramatically proven in 2005 in the multi-forum civil and criminal litigation on the McKesson HBOC securities fraud. Regardless of the merits of the selective waiver doctrine - and the emerging consensus is negative - the intractable forum-shopping problem means the selective waiver doctrine is useless if not unjust. It should be repealed in the jurisdictions where it remains good law.
Keywords: attorney-client, work product, selective waiver, limited waiver, mckesson, white collar, sec, cooperation
JEL Classification: K14, K41, K22
Suggested Citation: Suggested Citation