The following is not meant to be legal advice.
Deputy Attorney General McNulty of the Department of Justice (DOJ), reiterates the policy statements of the Thompson Memorandum in the McNulty Memorandum.
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 II information covers legal advice given to the corporation before, during and after the underlying conduct occurred. This includes attorneys' notes, memoranda and reports containing counsel's mental impressions, and conclusions or legal advice given to the corporation.
Before requesting Category II information, the U.S Attorney must obtain written authorization from the Deputy Attorney General. If authorized, the request must be communicated in writing to the corporation.
Unlike Category I information, which encompasses "factual" information, including witness statements, factual interview memoranda, chronologies, fact summaries, and the like, a prosecutor may not consider a corporation's refusal to provide Category II information in making a charging decision.
The McNulty Memorandum provides that "[p]rosecutors may always favorably consider a corporation's acquiescence to the government's waiver request in determining whether a corporation has cooperated in the government's investigation." Pressure will remain on companies to disclose Category II information upon request to avoid indictment.
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