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Cooperation, Confidentiality and Waiver: Is There a Solution?
Much has been written, in this newsletter and elsewhere, about the dilemma faced by corporations that want to cooperate with a government investigation by acceding to government “requests” for information protected by the attorney-client and work product privileges, while at the same time attempting to protect the otherwise privileged information from disclosure to the litigious world at large. Recent turf battles between federal and state prosecutors and regulators have only made more difficult any attempt to resolve the tension between two perceived needs: to cooperate, and to preserve confidentiality.
A 'State of Hopeless Confusion'
The continuing, tortured development of the law gives little guidance to counsel who must advise clients about the risks in disclosing privileged information to the government. Counsel is operating in an arena in which the case law “is in a state of hopeless confusion.” In re M&L Business Machine Company, Inc. 161 B.R. 689, 696 (D. Colo. 1993). As one federal circuit court judge has noted, even where the company has entered into a confidentiality agreement with the government, the circuit courts of appeal are “deeply split” on whether a disclosure waives privilege “as to all other parties.” In re Columbia/HCA Healthcare Corporation Billing Practices Litigation, 293 F.3d 289, 308 (6th Cir. 2002) (Boggs, J., dissenting). “The resulting decisions cover the entire spectrum — from protection of work product in the absence of a confidentiality agreement to no protection of work product even when a disclosure was secured by a confidentiality agreement.” Saito v. McKesson HBOC, Inc., 2002 WL 31657622 (Del. Ch. 2002).
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