In the Courts

On April 17, 2009, the U.S. Court of Appeals for the District of Columbia held that a company's assertions of privilege over documents produced as part of its cooperation with federal prosecutors and subject to a non-waiver agreement and request for confidentiality would not overcome the government's duty to produce those materials to the former employee being prosecuted. United States v. Williams Companies, Inc., 562 F.3d 387, 397 (D.C. Cir. 2009).

The Williams Companies (Williams), as a part of cooperation with a Department of Justice (DOJ), Commodity Futures Trading Commission (CFTC), and Federal Energy Regulatory Commission (FERC) investigation into its energy trading practices, retained outside counsel to conduct an internal investigation. As a part of that investigation, outside counsel conducted interviews of employees and analyzed data relating to the company's trading practices. When this material was not produced in response to government subpoenas, the CFTC wrote to Williams indicating that full cooperation would include production of the results of the internal review. Williams produced these materials, noting in its cover letters that it was not waiving privilege, particularly as to other parties and matters and noting its understanding that the government would assist “in preserving the confidentiality” of the materials.