The Champion

September/October 2009 , Page 30 

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The Limits of a Nonwaiver Agreement

By Blair G. Brown

Read more White-Collar Crime columns.

Criminal Defendant Obtains Discovery of Privileged Corporate Documents Produced to the Government

Arecent opinion of the U.S. Court of Appeals for the District of Columbia Circuit underscores the perils of privilege waivers by corporations cooperating with the government and the opportunities for discovery by individual criminal defendants that can result from those waivers.

Background

In United States v. Thompson,1 the court of appeals considered a corporation’s appeal of a district court discovery order compelling the government to disclose to defendant Scott Thompson privileged documents produced by the corporation to the government in the course of its cooperation in criminal and regulatory investigations. The district court ordered production despite the corporation’s agreement with the government that its disclosures would not constitute a waiver of any privileges.

In 2002, in response to the California energy crisis, the federal government was examining practices of certain energy

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