The Champion

January/February 2006 , Page 42 

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New Life For Selective Waiver

By Kathryn Keneally

Read more White-Collar Crime columns.

‘Companies that are subjects’ of government investigations have faced an increasingly bleak landscape in recent years. On the one hand, prosecutors have more aggressively demanded that companies waive privilege and disclose the results of internal investigations as evidence of corporate cooperation. On the other hand, the doctrine of ‘selective waiver’ — the notion that a company can waive privilege as to the government but maintain privilege as to third-parties — has generally received a chilly reception in the federal courts.

Some recent court decisions, however, have provided a ray of hope, albeit on more narrow grounds than defense attorneys had originally advanced. While courts have almost universally rejected ‘selective waiver’ of the attorney-client privilege, several courts have upheld claims of selective waiver as to attorney work product where such materials are protected by confidentiality agreements. While these courts remain in the minority even on this more narrow selecti

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