The following is not meant to be legal advice.
In contrast to Senator Arlen Specter (R-PA)’s Attorney Client Privilege Act of 2006 (Act), which sets out a rule prohibiting government attorneys from demanding or requesting that an organization waive the attorney-client or work product privileges, Deputy Attorney General McNulty of the Department of Justice (DOJ), reiterates the policy statements of the Thompson Memorandum.
The McNulty Memorandum sets out a "legitimate needs" test that federal prosecutors must satisfy before requesting a waiver of attorney-client privilege. Whether there is a legitimate need depends upon: the likelihood and degree to which the privileged information will benefit the government's investigation; whether the information sought can be obtained in a timely and complete fashion by using alternative means that do not require waiver; the completeness of the voluntary disclosure already provided; and
the collateral consequences to a corporation of a waiver.
Prosecutors will likely argue that early access to the results of a company's internal investigation, witness statements and relevant documents will expedite, and benefit the government's investigation, as well as enable the government to evaluate the accuracy and completeness of the company's voluntary disclosure.
If "legitimate needs" exist, the McNulty Memorandum directs prosecutors to seek the "least intrusive" waiver necessary to conduct a complete and thorough investigation. There are several categories of information.
Category I information encompasses "factual" information, including witness statements, factual interview memoranda, chronologies, fact summaries, and the like. Before requesting that a corporation waive applicable privileges for Category I information, the prosecutor must obtain written authorization from the local U.S. Attorney. The U.S. Attorney must provide a copy of the request to and consult with the Assistant Attorney General of the Criminal Division before granting the request.
The McNulty Memorandum states that "[a] corporation's response to the government's request for waiver of privilege for Category I information may be considered in determining whether a corporation has cooperated in the government's investigation."
Pressure will remain on corporations to waive privilege.
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