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The Yates Memo, Corporate Cooperation and Attorney-Client Privilege
On Sept. 9, 2015, U.S. Department of Justice (DOJ) Deputy Attorney General Sally Q. Yates issued a memorandum titled “Individual Accountability for Corporate Wrongdoing” (the “Yates Memo”). It announced the DOJ's corporate cooperation policy requiring disclosure of “all relevant facts about individual[s]” before the DOJ will consider awarding the company any credit for cooperation that may reduce the company's civil or criminal penalties. The Yates Memo mandated that federal prosecutors follow certain guiding principles, including: 1) focusing on individuals, from the inception of the government investigation, regardless of whether the investigation is civil or criminal; 2) increasing collaboration between fellow civil and criminal DOJ attorneys; 3) ensuring that no resolution of a corporate investigation should protect individuals from liability, absent extraordinary circumstances; 4) providing a clear plan to resolve individual cases before the statute of limitations expires; and 5) for civil DOJ attorneys, focusing on individuals, regardless of their ability to pay.
Even though the Yates Memo proclaims that it does not change existing DOJ policy, it raises concerns about the DOJ's view of the attorney-client privilege. On Nov. 16, 2015, in a speech in Washington DC, Yates explained that companies seeking cooperation credit “must provide all non-privileged information about individual wrongdoing.” (Deputy Attorney General Sally Q. Yates, Remarks at American Banking Association and American Bar Association Money Laundering Enforcement Conference (Nov. 16, 2015)). She commented that companies are not required to waive the attorney-client privilege or work product doctrine for interview memos to receive cooperation credit. However, Yates emphasized that to “earn cooperation credit, the corporation does need to produce all relevant facts ' including the facts learned through those interviews ' unless identical information has already been provided.” Id.
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