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LJN NewslettersNewsSectionsThe Corporate Counselor

The Bell Keeps Tolling

By Alexander Y. Thomas
November 28, 2006

Selective waiver of the attorney-client privilege is a lonely doctrine indeed. Since the Eighth Circuit first adopted it in the 1977 Diversified Industries case, the notion that a litigant may disclose privileged material to government enforcers without waiving the privilege as to third parties has hardly won fans among federal courts of appeal. Most recently, in June, 2006, the Court of Appeals for the Tenth Circuit weighed in on the viability of selective waiver. The In Re: Qwest Communications Int'l decision is precisely what advocates for selective waiver needed least; it is a comprehensive evaluation, and rejection, of nearly all of the cogent arguments advanced in favor of the doctrine.

The Tenth Circuit's back-to-basics approach to the privilege and work product doctrine is essential reading for corporate counsel faced with the unenviable decision about what to disclose 'voluntarily' to government enforcers or investigators. While it was careful to focus its reasoning on the record before it, the court fundamentally determined that selective waiver is inconsistent with, and fails to promote, the original objectives of the attorney-client privilege and the work product doctrine.

The Qwest Communications decision leaves the Eighth Circuit as the only federal circuit embracing outright selective waiver of the privilege. It is safe to say the Tenth Circuit's decision extinguishes any hope that federal common law will provide an easy outlet for the huge pressure to which federal enforcers routinely subject the privilege.

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