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Direct harm to the privilege from complying with government policy: The McKesson case
By Kathryn Keneally
White-Collar Crime columns.
The Department of Justice has a policy of encouraging corporations that
are under criminal investigation to waive the protections of the
attorney-client privilege and work product immunity as a demonstration
of the corporation’s “timely and voluntary disclosure of wrongdoing and
its willingness to cooperate in the investigation of its agents.”1 This
policy, originally set out by then-Deputy Attorney General Eric Holder
in what has come to be known as the Holder Memorandum, and recently
reiterated by Deputy Attorney General Larry D. Thompson, is the subject
of a thorough discussion in another article in this issue of The Champion.2 The recent district court opinion in United States v. Bergonzi3 provides a ready illustration of the real-world ramifications of this misguided policy.
McKesson corporation’s cooperation
The defendants in Bergonzi are two former executives of HBO & Company. As described in the Bergonzi decision, in early 1999, HBO was acquired by the M
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