Privilege: The US Perspective

32.1       Privilege in law enforcement investigations

32.1.1    Attorney–client privilege

The attorney–client privilege is recognised in the United States as ‘the oldest of the privileges for confidential communications known to the common law.’¹ It is viewed as serving a crucial function in ‘encourag[ing] full and frank communication between attorneys and their clients’ and thereby promoting ‘the observance of law and administration of justice.’² The attorney–client privilege protects information shared between a lawyer and the client, where the information is: (1) a communication, (2) made in confidence, (3) between a person who is, or is about to become, a client (4) and a lawyer (5) for the purpose of obtaining legal advice or assistance.³ Attorney–client privileged communications may take many forms from oral communications, to emails, to text messages, so long as each communication is undertaken in confidence for the purpose of seeking or rendering legal advice.⁴ Once the privilege is created, the privilege continues and may be invoked at any time (unless it has been waived or is otherwise subject to an exception) even following the termination of the attorney–client relationship or the death of the client.⁵

In Upjohn Co. v. United States,⁶ the United States Supreme Court held that a company’s attorney–client privilege extends to company counsel’s communications with employees in certain prescribed circumstances.⁷ Rather than providing a simple objective test, the Upjohn court instead established five factors to guide courts in determining whether the company’s privilege should extend to counsel’s communications with its employees: (1) whether the communications were made by employees at the direction of superior officers of the company for the purpose of obtaining legal advice; (2) whether the communications contained information necessary for counsel to render legal advice, which was not otherwise available from ‘control group’ management; (3) whether the matters communicated were within the scope of the employee’s corporate duties; (4) whether the employee knew that the communications were for the purpose of the company obtaining legal advice; and (5) whether the communications were ordered to be kept confidential by the employee’s superiors, including that the communications were considered confidential at the time and kept confidential subsequent to the interview.⁸ When these elements are established, courts generally consider communications between company counsel and an employee to be within the scope of the company’s attorney–client privilege.⁹

While the privilege provides broad protection for confidential communications among those within the attorney–client relationship, disclosing the contents of these communications to a third party outside the scope of the protection – such as a government agency – may result in a waiver of the applicable privilege.¹⁰

Crime-fraud exception

The attorney–client privilege does not offer an absolute protection for all of a lawyer’s communications with the client. An important exclusion is the crime-fraud exception, which removes the protection of the attorney–client privilege for communications concerning contemplated or continuing illegal or fraudulent acts.¹¹

After a party has invoked the attorney–client privilege, the person seeking to abrogate the privilege under this exception has the burden of making a prima facie case that: (1) the client was committing or intending to commit a crime or fraud; and (2) the attorney–client communications at issue were in furtherance of that alleged crime or fraud.¹² Significantly, for the exception to be applicable, the party need not show that the alleged crime or fraud was actually completed, only that the crime or fraud was the objective of the communication.¹³ Further, the party need not show that the attorney was aware of the alleged fraud or misconduct. In fact, the attorney’s knowledge or ignorance of the crime is irrelevant. Instead, courts look to the client’s intent or objective in the subject communication.¹⁴

The crime fraud exception does not apply to attorney–client communications that reflect the solicitation or provision of legal advice concerning crimes or frauds that occurred in the past; such attorney–client communications remain protected,¹⁵ unless the communications are made for the purpose of covering up past misconduct or obstructing justice.¹⁶ Attorney–client communications reflecting advice about the legality of a client’s intended course of conduct are likewise protected as privileged.¹⁷ Finally, communications where an attorney dissuades or prevents the client from engaging in further illegal conduct are also protected; such communications are viewed as serving an important purpose in the administration of justice by promoting legal conduct.¹⁸

32.1.2    Attorney work-product

In the United States, the doctrine of ‘attorney work-product’ also protects from disclosure certain documents and other materials prepared in anticipation of litigation or for trial. Although such work-product is most commonly prepared by an attorney, work-product protection may extend to materials prepared in anticipation of litigation by certain third parties at the attorney’s direction, including materials prepared by the client.¹⁹ But while the work-product doctrine offers certain protections for an attorney’s impressions, opinions and legal conclusions, such documents are not considered ‘privileged’ like attorney–client communications, but instead are afforded a qualified protection from discovery.²⁰

In the seminal case of Hickman v. Taylor,²¹ the United States Supreme Court formally recognised the attorney work-product doctrine, establishing the scope of the protection to include materials prepared in anticipation of litigation.²² The Hickman court also qualified this work-product protection by finding that, upon a showing of good cause, an adversary could obtain discovery of documents containing ‘factual work product’.²³ The Court recognised that substantially greater – if not absolute – work-product protection should be given to documents that reflect the attorney’s legal theories, strategy, assessments and mental impressions (opinion work-product).²⁴

In United States v. Nobles,²⁵ the Supreme Court extended the work-product doctrine beyond the scope of materials created by counsel, recognising that attorneys often rely on the assistance of investigators and other agents in preparation for trial. The Court found that it is ‘necessary that the [attorney work-product] doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.’²⁶ Following the Supreme Court’s guidance in Nobles, work-product protection is understood to be extended to material prepared ‘by or for ^a party’s representative’ as long as the agent is assisting in preparing for litigation and working at the direction of the attorney.²⁷

The modern federal work-product doctrine is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure (the Federal Rules), and stands in line with the Supreme Court’s guidance in Hickman and Nobles. In particular, Rule 26(b)(3) eliminates the distinction between attorney work-product and non-attorney work-product, focusing on whether the materials were prepared in anticipation of litigation or trial.²⁸ Further, Rule 26(b)(3) preserves work-product protections unless the party seeking discovery has a ‘substantial need’ for the materials in the preparation of the party’s case and the party is unable without ‘undue hardship’ to obtain the ‘substantial equivalent’ of the materials by other means.²⁹

While the attorney work-product doctrine offers a qualified protection for documents created in anticipation of litigation, disclosing the contents of such documents to a third party outside of the attorney–client relationship (such as a government agency) may result in a waiver of this protection.³⁰

32.1.3    Common interest or joint defence privilege

The joint defence (or ‘common interest’) privilege is a doctrine that preserves the attorney–client privilege and work-product doctrine, despite disclosure of otherwise protected information to third parties.³¹ As explained by the Second Circuit Court of Appeals, the privilege ‘serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.’³² In general, a party asserting the privilege must demonstrate that (1) the communications were made in the course of a joint defence effort; (2) the statements were designed to further the effort; and (3) the privilege has not otherwise been waived.³³ If the privilege is challenged, the burden is on the defendants to demonstrate the existence of a joint defence arrangement.³⁴

While a joint defence arrangement has not been held to create a direct attorney–client relationship between counsel for one party and another, some courts have found that the sharing of confidential information creates an implied attorney–client relationship among the parties to the joint defence. In United States v. Henke,³⁵ for example, the Ninth Circuit held that the joint defence privilege can, in certain circumstances, create an implied attorney–client relationship, as well as a disqualifying conflict of interest. In that case, three executives – Gupta, Desaigoudar and Henke – were charged with conspiracy, making false statements, securities fraud and insider trading.³⁶ All three defendants participated in joint defence meetings where they shared confidential information.³⁷ On the eve of trial, however, Gupta entered into a co-operation agreement and agreed to testify for the government.³⁸ Gupta’s lawyers threatened Desaigoudar and Henke’s attorneys with legal action if they revealed any confidential information obtained as part of the joint defence meetings. Desaigoudar and Henke’s attorneys eventually moved to withdraw because they believed their duty of confidentiality to Gupta prevented them from effectively cross-examining him.³⁹ The Ninth Circuit held that the lower court erred in denying the motions to withdraw, as the joint defence privilege created ‘a disqualifying conflict where information gained in confidence by an attorney [became] an issue.’⁴⁰

To mitigate the risk that information shared in the context of a joint defence agreement may lead to disqualification at a later time, many lawyers choose to include written disclaimers in their joint defence agreements along the following lines:

Nothing contained [in this agreement] shall be deemed to create an attorney–client relationship between any attorney and anyone other than the client of that attorney . . . and no attorney who has entered into this Agreement shall be disqualified from examining or cross-examining any joint defense participant who testifies at any proceeding, whether under a grant of immunity or otherwise, because of such an attorney’s participation in this agreement, and it is herein represented that each party to this agreement has specifically advised his or her client of this clause.⁴¹

Courts have found such provisions to permit an attorney to cross-examine a witness who was a former member of a joint defence arrangement and has since become a government co-operator, and have even permitted counsel to impeach the witness using statements that would otherwise be protected as privileged under the joint defence.⁴²

Further, to preserve the attorney–client privilege in the context of a joint defence arrangement, confidentiality must still be maintained against those outside the arrangement, because disclosure to a single outside person could constitute waiver of the information discussed in the outsider’s presence.

32.2       Identifying the client

The ‘client’ in an attorney–client relationship is generally defined as the intended and immediate beneficiary of the lawyer’s services, who communicates with the attorney to obtain legal advice, and interacts with the attorney to advance his or her own interests.⁴³ Defining the ‘client’ becomes more difficult in the context of corporate representation, as a company typically speaks by and through its employees, but the corporation’s counsel represents not those individual agents, but rather the corporation itself.⁴⁴ As a general matter, a corporation’s attorney–client privilege is controlled by the management of the organisation.⁴⁵ An employee or officer cannot assert the corporation’s privilege if the corporation waives it,⁴⁶ and an employee cannot waive the corporation’s privilege if the corporation asserts it.⁴⁷

In cases where the interests of an employee are or may become adverse to that of the company during a government investigation, the Rules of Professional Conduct⁴⁸ dictate that attorneys explain clearly whom they represent.⁴⁹ Interviewing employees in the context of a government investigation inevitably creates situations in which conflict between company and employee may arise. In particular, individuals should be advised to obtain separate counsel in situations where they are (1) the target of the investigation; (2) a probable whistleblower; or (3) an employee facing risk of criminal liability. In any of these circumstances, employees should not be involved in the day-to-day supervision of company counsel’s own investigation, including serving in the reporting chain.

Company counsel may encounter circumstances where an employee seeks to assert the attorney–client privilege to prevent the disclosure of information uncovered by counsel during investigative interviews by arguing that company counsel represents the employee as an individual. The Third Circuit in In re Bevill Bresler & Schulman Asset Management Corp., developed a five-part test (the Bevill test) to examine the merits of such an assertion by an individual employee against company counsel.⁵⁰ Under this test, employees must show that (1) they approached corporate counsel for the purpose of seeking legal advice; (2) they made it clear that they were seeking advice in their individual capacity; (3) counsel sought to communicate with the employee in this individual capacity, mindful of the conflicts with its representation of the company; (4) the communications were confidential; and (5) the communications did not concern the employee’s official duties or the general affairs of the company.⁵¹ The Bevill test has been recognised by other jurisdictions as a means of assessing whether a company employee may assert attorney–client privilege in an individual capacity arising out of communications with corporate counsel.⁵² (See also Chapter 13 on employee rights.)

To mitigate the risks created by potentially divergent interests between the company and individual employees, counsel should be clear in their engagement letter about not only whom they represent, but also whom they do not. Further, mindful of the considerations outlined by the Bevill court, company counsel should take care during interviews with individual employees to limit their discussions to matters within the scope of the employee’s official duties, rather than matters that may implicate the employee’s personal interests. Further, in the event that discussions with an individual employee diverge to matters implicating legal advice in the employee’s individual capacity, counsel should reiterate to the employee that they have been retained to represent the company and the company’s interests, and potentially advise the employee to retain separate counsel with respect to these other matters.

32.3       Maintaining privilege

32.3.1    Employee interviews

It is generally best if counsel conducts the employee interviews in the context of a government investigation, to ensure that what is said during the interview is covered by the attorney–client privilege, and that notes or memoranda documenting the interview are similarly privileged.⁵³ Recordings of interviews may, however, be considered purely factual communications that – as verbatim transcriptions – may not be subject to the attorney work-product doctrine.⁵⁴ Accordingly, it is general practice to have the attorney interviewer (or, more likely, another attorney in the room) take written notes of the interviews that include his or her thoughts and mental impressions. And because opinion work-product receives greater protection than fact work-product, it is more likely that written notes including an attorney’s thoughts and impressions will be protected.

While it is often most advantageous to have counsel conduct the witness interviews in an investigation, a court may still find that interviews conducted by non-lawyers maintain attorney–client privilege if they are acting as agents for lawyers. For example, in In re Kellogg Brown & Root Inc (KBR),⁵⁵ the DC Circuit court held that the work of an engineering and construction firm involved in an the internal investigation was afforded work-product protection where the investigation was conducted ‘under the auspices of KBR’s in-house legal department, acting in its legal capacity.’⁵⁶ The court held that ‘[s]o long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney–client privilege applies.’⁵⁷ The court’s decision in KBR underscores the importance of making it clear that witness interviews conducted in the context of an internal investigation are for the purpose of rendering legal advice.⁵⁸

Consistent with these principles, at the outset of any employee interview, counsel should give the employee an Upjohn warning, which makes clear that the communications between company counsel and the employees are confidential and protected as attorney–client privileged, and specifies that the privilege belongs to the company, and the company may choose to waive that privilege in the future. If clearly given, an Upjohn warning sets the boundaries of the interview and removes any doubt about whether counsel represents the employee.

In KBR, the DC Circuit noted that there are no ‘magic words’ that must be used to deliver a proper Upjohn warning.⁵⁹ Nevertheless, in practice, Upjohn warnings typically include some variation of the following components:

• I am a lawyer for the company and do not represent you personally.
• The purpose of this interview is to learn about [the issue] to provide legal advice to the company.
• This conversation is privileged, but the privilege belongs to the company, not you. It is up to the company whether to waive the privilege, including with respect to the government or other third parties.
• The conversation should be kept confidential to preserve the company’s privilege.

Once the Upjohn warning is given, and before any substantive interview commences, counsel should confirm that the witness understands the warning, answer any questions the witness has about it and establish that the witness is agreeable to being interviewed under these terms. As an additional precaution, counsel should remind the witness at the conclusion of the interview not to discuss the substance of the interview with anyone else, except to the extent that the witness wishes to convey additional information or to ask follow-up questions of counsel.

Once a witness interview is complete, memorialising the content of the interview is essential to the investigation. The summary should state expressly that it does not constitute a verbatim transcription of the interview and that the summary contains the thoughts, mental impressions and legal conclusions of counsel. The summary should also confirm the delivery of the Upjohn warning, indicating the employee’s understanding of the warning and willingness to proceed with the interview.

32.3.2    Former employees

Interviews with former corporate employees about matters within the scope of their prior employment may also be protected by the attorney–client privilege.⁶⁰ As such, counsel conducting an investigation should carefully focus the interview with a former employee on matters that occurred during the former employee’s tenure, as some district courts have held that interviews with a former employee on subjects that occurred after the employment had ended are not privileged.⁶¹

In determining whether a former employee is likely to be co-operative or to maintain the confidentiality of the interview, counsel should consider (1) the circumstances of the employee’s departure and (2) whether the employee will be contractually obliged to maintain the confidentiality of the interview, through a severance agreement, for example.

32.3.3    Non-legal advice

At the outset of an internal investigation, the corporation should document that the investigation is being conducted for the purpose of obtaining legal advice and at the direction of counsel. If such intention is not documented, and it appears instead that employee interviews are being conducted in the context of a non-legal investigation, such communications may not be effectively cloaked in the attorney–client privilege. In Koumoulis v. Independent Financial Marketing Group Inc,⁶² for example, plaintiffs were former and current employees of a company in the business of providing investment products to financial institutions.⁶³ The Eastern District of New York found that reports documenting internal discrimination complaints and the subsequent investigation by the company’s human resources managers were not protected as attorney–client privileged because ‘their predominant purpose was to provide human resources and thus business advice, not legal advice.’⁶⁴

In light of Koumoulis, counsel must be ever mindful of stating explicitly at the outset of an investigation that its communications are outside the course of the day-to-day operation of the client’s business and are explicitly aimed at assisting the delivery of legal advice. To the extent that litigation is reasonably foreseeable, it should be noted in all memoranda generated in the context of the investigation. Further, counsel should confirm with individual employees that when they are seeking legal advice – rather than business advice – the employees should be similarly explicit in their communications, labelling them as ‘attorney–client privileged’. More important than any label or transcription, however, is that the context of such documents must reflect the solicitation and receipt of legal, rather than business, advice.⁶⁵

32.4       Waiving privilege

Even if all the prerequisites for establishing attorney–client privilege are met, whenever a client discloses confidential communications to third parties, including government agencies, the disclosure may constitute a waiver of the privilege as to both the communication that has been disclosed and other communications relating to the same subject matter. Federal Rule of Evidence 502(a) governs disclosures made to a federal officer or agency and also the scope of waiver in such disclosures.⁶⁶ The rule explicitly states that disclosures of attorney–client or work-product protection to the federal government creates a waiver that extends to other undisclosed communication or information in a federal or state proceeding if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together.⁶⁷

While the ‘fairness’ requirement of Rule 502(a) creates some uncertainty as to when subject-matter waiver might occur, in practice, courts typically look to the reason for the initial disclosure when determining the scope of a waiver. If, for example, a party produces privileged documents intentionally, but such documents would not be used in the case to the government’s disadvantage, courts generally will limit waiver to the disclosed documents themselves.⁶⁸ Where a party introduces privileged documents for strategic reasons to advance its own position to the government’s detriment, however, courts may find a broader subject-matter waiver.⁶⁹

32.4.1    Co-operation credit and waiver

Corporations subject to criminal or regulatory investigations have long faced the question of whether and when to turn over privileged material to the government. Waiving privilege has historically resulted in increased co-operation ‘credit’ from the Department of Justice (DOJ)⁷⁰ and the Securities and Exchange Commission (SEC).⁷¹ However, recent changes to DOJ guidelines now forbid the government from requesting that companies waive attorney–client privilege, and preclude consideration of whether the corporation waived privilege in assessing co-operation credit.

Indeed, in response to pressure from the private sector and the legislative and judicial branches, on 12 December 2006, the then Deputy Attorney General Paul J McNulty issued a memorandum containing new corporate charging guidelines for federal prosecutors through a revision to the Principles of Federal Prosecution of Business Organizations.⁷² The McNulty Memorandum required that, before requesting a waiver of attorney–client or work-product privileged information from a corporation under investigation, prosecutors must: establish a ‘legitimate need’ for privileged communications and seek approval of the US Attorney, who must obtain written approval of the Deputy Attorney General.⁷³

In 2008, the DOJ replaced these guidelines in a memorandum authored by Deputy Attorney General Mark R Filip.⁷⁴ The Filip Memorandum further adjusted what factors the government should consider in determining whether a corporation deserves ‘co-operation credit’: where co-operation credit had previously turned on factors including waiver of attorney–client privilege or work-product protections, it will now focus on disclosure of relevant facts.⁷⁵ In other words, a company could receive the same co-operation credit if it disclosed facts contained in non-privileged materials as it would if it disclosed facts contained in privileged materials, so long as the company discloses all relevant facts known to it.

In September 2015, the Department of Justice issued a memorandum authored by Deputy Attorney General Sally Quillian Yates entitled ‘Individual Accountability for Corporate Wrongdoing’.⁷⁶ The Yates Memorandum set forth policies intended to guide the DOJ in holding individual defendants civilly and criminally liable for corporate misconduct.⁷⁷ Significantly, the Yates Memorandum now requires a company to disclose ‘all relevant facts relating to the individuals responsible for the misconduct’ for the company ‘to be eligible for any cooperation credit.’⁷⁸ While Deputy Attorney General Yates has publicly remarked that these new policies are not intended to undermine the Filip Memorandum’s guidance regarding the waiver of attorney–client privilege,⁷⁹ the mandate to disclose ‘all relevant facts’ creates some uncertainty as to whether, at least practically speaking, such a waiver may now be required once again. In describing the impact of the Yates Memorandum on companies seeking co-operation credit, Deputy Attorney General Yates explained the DOJ’s view that ‘facts are not ^[privileged],’ and therefore a company must ‘produce all relevant facts – including the facts learned through . . . interviews [with company employees] – unless identical information has already been provided.’⁸⁰

In light of the Yates Memorandum, corporate counsel must be mindful about entering into joint defence agreements that might limit their ability to share with the government the underlying facts learned during the investigation, especially if the company is facing exposure to a potentially devastating criminal charge if it does not receive credit for co-operating with the government.

32.4.2    Inadvertent disclosure of privileged material

Particularly in cases where large numbers of documents are produced, it is not uncommon that a party might inadvertently disclose privileged communications. Federal Rule of Evidence 502(b) governs the court’s treatment of attorney–client privileged and work-product material that has been inadvertently disclosed. The rule provides that, when making a disclosure in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: ‘(1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error.’⁸¹ According to Rule 502(b)’s advisory committee explanatory notes, courts are to consider several factors in determining whether the privilege holder took steps to promptly rectify the error, including: (1) the reasonableness of precautions taken; (2) the time taken to rectify the error; (3) the scope of discovery; (4) the number of documents reviewed and the time constraints for production; (5) the extent of disclosure; and (6) ‘the overriding issue of fairness.’⁸² The explanatory notes also suggest that a party can help demonstrate that its steps were reasonable by employing ‘advanced analytical software applications and linguistic tools’ in screening for privilege.⁸³

Federal Rule of Civil Procedure 26(b)(5)(B) provides additional guidance on how clawback provisions may intersect with a claim of inadvertent disclosure. Under this Rule, if information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, ‘the party making the claim may notify any party that received the information of the claim and the basis for it.’⁸⁴ After being notified, a party:

must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim.⁸⁵

Even where counsel takes reasonable steps to prevent the disclosure of privileged material, the complexity of government investigations creates a real risk that such materials may still be inadvertently produced. To further mitigate this risk, document production letters should include unequivocal language, preserving the client’s ability to claw back and recover inadvertently disclosed documents.

32.5       Selective waiver

The attempt to disclose privileged material to the government in the context of an investigation, while still claiming privilege and confidentiality over that same material as to other third parties, is called ‘selective waiver’. Generally, courts have refused to sanction selective waiver, finding that the disclosure of privileged material to the government destroys the confidentiality necessary to maintain a claim of privilege in the first place, and therefore waives the privilege with respect to other third parties as well.⁸⁶

The leading case applying the selective-waiver analysis is Diversified Industries Inc v. Meredith.⁸⁷ In Diversified Industries, a corporation retained outside counsel to conduct an internal investigation into allegations of bribery.⁸⁸ The internal report prepared by outside counsel was then produced to the SEC.⁸⁹ The Eighth Circuit held that this disclosure constituted only a ‘limited waiver’ that did not preclude the corporation from subsequently withholding the report from private litigants on the grounds of attorney–client privilege.⁹⁰ The court reasoned that a contrary ruling may undermine corporate incentives to initiate internal investigations conducted by counsel.⁹¹

But while Diversified Industries is still good law, the concept of selective waiver is disfavoured by most federal circuit courts,⁹² which routinely hold that selective disclosure of a document to the government constitutes complete waiver of the privilege. As the DC Circuit reasoned, the privilege was not designed to allow a client ‘to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others.’⁹³

The Second Circuit confronted the issue of selective waiver in In re Steinhardt Partners LP.⁹⁴ While expressing reluctance to embrace selective waiver, the Steinhardt decision refused to foreclose the possibility that selective waiver may be found in some cases, at least where the disclosing party and the government share a common interest or the disclosing party has entered into an explicit agreement with the government to maintain the confidentiality of the disclosed materials.⁹⁵ As a result, in the Second Circuit, a case-by-case analysis of the facts is necessary to determine whether selective waiver may apply.⁹⁶

Some courts have suggested that production pursuant to a valid confidentiality agreement entered into with the government prior to the disclosure of attorney–client privileged or work-product information effectively preserves the privilege and does not amount to a waiver as to third parties.⁹⁷ Consequently, if the company does intend to disclose privileged material to the government, it should first attempt to obtain such an agreement from the government that it will keep the information confidential (a McKesson letter).⁹⁸ But even though future plaintiffs would not be parties to such an agreement, some courts have still found that the production of privileged materials pursuant to confidentiality agreements with the government nonetheless constitutes a waiver.⁹⁹ In light of federal courts’ reluctance to find selective waiver, when a company voluntarily discloses documents or communications to government agencies, it must do so with the understanding that the documents and communications may lose the protection of the privilege and be subject to discovery by other parties, including private litigants.

Safe harbours

Banks, in particular, often face pressure to share privileged materials with the government, both in the context of enforcement actions aimed at suspected wrongdoing and during routine regulatory oversight. But as a statutory matter, sharing privileged materials with bank supervisors results in a waiver of privilege only with respect to those supervisors; it does not waive applicable privileges with respect to third parties. Under Section 1828(x) of the Regulations Governing Insured Depository Institutions, the submission of information to ‘the Bureau of Consumer Financial Protection, any ^federal banking agency, ^state bank supervisor, or foreign banking authority for any purpose in the course of any supervisory or regulatory process’ shall not be construed as waiving privilege ‘as to any person or entity other than such agency, supervisor, or authority’.¹⁰⁰ This approach provides one of the few examples of federal statutes that explicitly allow for the idea of selective waiver.¹⁰¹

32.6       Disclosure to third parties

Generally, the attorney–client privilege is waived if the holder of the privilege voluntarily discloses or consents to the disclosure of any significant part of the communication to a third party or stranger to the attorney–client relationship.¹⁰² A third-party agent may have communications with an attorney that remain covered by the attorney–client privilege if the agent’s role is limited to helping a lawyer give effective advice to the client.¹⁰³ Whether disclosure to outside consultants will constitute a waiver will depend on the surrounding facts and circumstances, including the purpose for the disclosure and the involvement of counsel with that third party.¹⁰⁴

United States v. Kovel is the seminal case concerning the bounds of attorney–­client privilege with respect to third-party consultants.¹⁰⁵ In Kovel, a law firm employed an accountant who was held in criminal contempt for refusing to testify about his conversations with the law firm’s client under a claim of privilege.¹⁰⁶ In considering whether the accountant had a basis to assert attorney–client privilege, the Second Circuit recognised that there are situations ‘where the lawyer needs outside help,’ and found that when the accountant assists in the ‘effective consultation between the client and the lawyer which the privilege is designed to permit,’ the privilege should protect the communications.¹⁰⁷ The Kovel court analogised the accountant’s role to that of an interpreter, which is sometimes necessary for the attorney effectively to communicate with his or her client.¹⁰⁸ The Kovel doctrine has been recognised by many courts as protecting attorney–client privilege in circumstances where a third party has specialised knowledge or skills that assist the attorney in rendering legal advice.¹⁰⁹

For example, a client’s statements to a private investigator hired by the client’s attorney are often protected by the attorney–client privilege when the investigator acts as an agent of the attorney.¹¹⁰ Similarly privileged (as work-product) are an investigator’s interviews to gather background information for the attorney.¹¹¹ If, however, the investigator is going to be a fact witness concerning the information she has gathered, then all aspects of the investigator’s fact gathering may be open to discovery, including statements by third parties to the investigator and the underlying factual data gathered by the investigator. Therefore, any work-product privilege that might have protected that information is waived by virtue of the private investigator’s decision to testify.¹¹²

Courts have also extended attorney–client privilege to include public relations consultants under certain circumstances.¹¹³ In particular, communications with public relations consultants have been found to maintain privilege if the primary purpose of the communication was to aid in the rendering of legal advice.¹¹⁴ Such communications are found within the bounds of rendering of legal advice if the consultant provides services necessary to promote the attorney’s effectiveness in the client’s legal representation or the consultant is essentially an extension of the attorney under agency principles, or both.¹¹⁵

Even with this guidance, the extent to which public relations consultants come within the bounds of attorney–client privilege is often unclear. For example, in Calvin Klein Trademark Trust v. Wachner, a court in the Southern District of New York refused to extend the attorney–client privilege to protect documents and testimony sought from Robinson Lerer & Montgomery (RLM), a public-relations firm retained by counsel to Calvin Klein.¹¹⁶ In so ruling, the court held, inter alia, that the ‘possibility’ that communications between counsel and RLM might help counsel formulate legal advice was ‘not in itself sufficient to implicate the privilege’;¹¹⁷ and that extending the privilege to the documents and communications at issue would apply the privilege too broadly because RLM did not appear to perform functions ‘materially different from those that any ordinary public relations firm would have performed’.¹¹⁸

A few months later, in In re Copper Market Antitrust Litigation, a different judge from the same district court reached the exact opposite conclusion regarding the same public relations firm, finding that RLM acted as the company’s ‘spokesperson’ when dealing with issues related to a copper trading scandal, and frequently conferred with counsel.¹¹⁹ Under these facts, the court found that RLM acted as the ‘functional equivalent of an in-house public-relations department with respect to Western media relations’ and therefore found that the communications between RLM, the company and counsel were made for the purpose of facilitating the provision of legal advice.¹²⁰

Similarly, in FTC v. GlaxoSmithKline, the US Court of Appeals for the DC Circuit found that communications with a public relations firm were protected by the privilege.¹²¹ In so ruling, the court adopted the Copper Market court’s rationale, crediting a party affirmation that the consultant became an ‘integral member of the team assigned to deal with the issues [that] . . . were completely intertwined with [the client’s] litigation and legal strategies.’¹²² Hence, for communications with a public relations firm to be cloaked in attorney–client privilege, the firm should interact regularly with counsel, and act as an agent at counsel’s direction.

In sum, a party claiming the benefit of attorney–client privilege has the burden of establishing all of the essential elements to qualify for the protections of the privilege.¹²³ Consequently, an attorney who wishes to consult with a non-attorney professional must seek to establish that the third party’s involvement will facilitate legal advice from the beginning of the engagement.¹²⁴

To support its claim that communications with, and documents generated by, a third party consultant are protected under the attorney–client relationship, counsel should memorialise the nature of the consultant’s engagement in a Kovel letter. Such a letter should (1) state that counsel is retaining the consultant to assist with the provision of legal advice to the client; (2) instruct the consultant about specific tasks to be performed in support of the provision of that legal advice; (3) state that all work-product generated under the scope of the engagement is the property of counsel; and (4) instruct the consultant to maintain the confidentiality of all information received or created in the course of the engagement. Further, the consultant should be guided in his or her actions by the attorney, rather than independently by the client.

Finally, the disclosure of attorney–client privileged information to a company’s external auditors ordinarily constitutes a subject-matter privilege waiver.¹²⁵ To the extent that counsel anticipates that the company’s outside auditors may require information about the status of an ongoing investigation, counsel should be prepared to communicate with auditors in a way that will limit any waiver of privilege. For example, counsel may provide the outside auditor detailed information about the investigative process – including the structure, the personnel involved, the document preservation steps that were taken, general information about the process of reviewing documents and conducting interviews, and outside consultants employed to assist in the investigation – which may provide the outside auditors with a level of comfort about the comprehensive nature of the investigative process, without waiving the privilege regarding the substance of the investigation.

And while the disclosure of privileged information to auditors will likely waive the attorney–client privilege, work-product protection may remain intact if the auditor’s interests are found not to be ‘adverse’ to the client. For instance, in Merrill Lynch & Co v. Allegheny Energy Inc,¹²⁶ Allegheny sought to compel discovery of two internal investigation reports (prepared by counsel) that Merrill Lynch had disclosed to its auditor, arguing that the disclosure constituted a waiver of any applicable privilege.¹²⁷ The court disagreed, stating that the ‘critical inquiry’ is whether the auditors ‘should be conceived of as an adversary or a conduit to a potential adversary.’¹²⁸ The court held that ‘any tension between an auditor and a corporation that arises from an auditor’s need to scrutinize and investigate a corporation’s records and book-keeping practices simply is not the equivalent of an adversarial relationship contemplated by the work-product doctrine.’¹²⁹ Consistent with the Allegheny court’s guidance, if the client cannot avoid disclosure of privileged information to its auditors, counsel may be able to argue in subsequent civil litigation that work-product protection remains intact under this principle.

Disclosure to foreign governments

When analysing issues of waiver surrounding productions to foreign governments, courts of the United States tend to focus on whether the production of privileged material was compelled or voluntary. Where the submission is compelled or where there was no opportunity to assert the privilege, United States courts will generally find that the privilege was not waived.¹³⁰

32.7       Expert witnesses

Prior to the 2010 amendments to Federal Rule of Civil Procedure 26, there was a significant risk that any documents provided to a testifying expert witness would be discoverable pursuant to the expert discovery provisions of Rule 26, even if they were previously considered attorney–client privileged.¹³¹

The 2010 amendments to Rule 26 made significant changes to the rules governing discovery of expert witnesses, severely limiting the discovery of communications between counsel and experts and of draft expert reports.¹³² In particular, Rule 26(b)(4)(B) was added to provide work-product protection for drafts of expert reports or disclosures.¹³³ Further, Rule 26(b)(4)(C) was added to provide work-product protection for attorney-expert communications, and was designed to protect counsel’s work-product and ensure that lawyers may interact with experts ‘without fear of exposing those communications to searching discovery.’¹³⁴

Although the 2010 amendments provide significant protection for expert drafts and attorney-expert communications, counsel should still make efforts to limit the scope of potential disclosure by effectively managing a testifying expert’s access to information and the development of the expert’s opinions. For example, Rule 26 does not preclude discovery of facts or data provided to the expert by an attorney, such as fact work-product prepared for the expert by counsel.¹³⁵ Consequently, counsel should create an inventory of all factual materials provided to a testifying expert and ensure that all of such factual materials are accurate and final, and that such materials have been produced or are otherwise matters of public record. Further, where the committee notes accompanying Rule 26 extend to ‘any materials considered by’ an expert, counsel should ensure that all of the facts made available to a testifying expert are based upon the record in the case, rather than as the result of attorney–client privileged communications.

Finally, while the amendment to Federal Rule 26 protects drafts of expert reports from disclosure, state court rules of civil procedure may vary as to whether such drafts are discoverable. If there is any question as to whether drafts of an expert report may be discoverable, especially if the matter is pending in a jurisdiction governed by state law, it may be advisable to negotiate a stipulation that explicitly extends the protection of the Federal Rules to expert discovery.

Notes

1. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
2. Id. at 392.
3. See, e.g., In re Richard, Inc., 68 F.3d 38, 39-40 (2d Cir. 1995).
4. See, e.g., Haines v. Liggett Grp., 975 F.2d 81, 90 (3d Cir. 1992) (explaining that privilege extends to verbal statements, documents and tangible objects conveyed in confidence for the purpose of legal advice).
5. David M. Greenwald & Michele L. Slachetka, Protecting Confidential Legal Information, Jenner & Block LLP 104 (2015), https://jenner.com/system/assets/assets/8948/original/2015Jenner_26BlockAttorney–clientPrivilegeHandbook.pdf (citing United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358 (D. Mass. 1950); Swidler & Berlin v. United States, 524 U.S. 399, 405-06 (1998)).
6. 449 U.S. 383 (1981).
7. Id.
8. Id. at 394-96.
9. To ensure that the employee understands the purpose of the interview, the expectation of confidentiality, and the scope of the attorney–client privilege, company counsel typically begins each meeting with a company employee by providing a summary of these factors, known as an ‘Upjohn warning.’ See also Section 32.3.1 below.
10. In In re Qwest Communications Int’l Inc., for example, the Court of Appeals for the Tenth Circuit held that attorney–client privilege was waived when a party disclosed privileged information to government agencies in the course of an investigation, even with a confidentiality agreement that specifically stated the party was not waiving the privileges. 450 F.3d 1179, 1181, 1192 (10th Cir. 2006). See also Section 32.4 below.
11. See, e.g., United States v. Zolin, 491 U.S. 554, 563 (1989) (explaining that the crime-fraud exception ‘assure^s that the seal of secrecy between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime’) (citation omitted); Clark v. United States, 289 U.S. 1, 15 (1933); In re Antitrust Grand Jury, 805 F.2d 155, 162 (6th Cir. 1986); In re Grand Jury Subpoenas Duces Tecum, 773 F.2d 204, 206 (8th Cir. 1985); United States v. Horvath, 731 F.2d 557, 562 (8th Cir. 1984).
12. See In re Grand Jury Subpoena, 223 F.3d 213, 217 (3d Cir. 2000); In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985).
13. See In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1039 (2d Cir. 1984).
14. See, e.g., United States v. Weingold, 69 Fed. Appx. 575, 578 (3d Cir. 2003) (noting that the privilege may be disregarded even if the lawyer is innocent in relation to the fraudulent scheme); In re Grand Jury Proceedings, 87 F.3d 377, 381-82 (9th Cir. 1996) (‘[I]t is the client’s knowledge and intentions that are of paramount concern to the application of the crime-fraud exception; the attorney need know nothing about the client’s ongoing or planned illicit activity . . . .’); In re Sealed Case, 754 F.2d at 402 (‘[A]n attorney’s ignorance of his client’s misconduct will not shelter that client from the consequences of his own wrongdoing.’); Horvath, 731 F.2d at 562 (‘Whether the attorney is ignorant of the client’s purpose is irrelevant.’).
15. See, e.g., Zolin, 491 U.S. at 562 (explaining that the crime-fraud exception applies ‘where the desired advice refers not to prior wrongdoing, but to future wrongdoing’) (citation omitted).
16. See, e.g., In re Grand Jury Proceedings, 102 F.3d 748, 751 (4th Cir. 1996) (noting that the crime-fraud exception includes ‘concealment or cover-up of [the client’s] criminal or fraudulent activities’); United States v. Laurins, 857 F.2d 529, 540 (9th Cir. 1988) (‘Obstruction of justice is an offense serious enough to defeat the privilege.’).
17. If a client seeks advice from counsel about the legality of a course of conduct and then relies to his or her detriment on that advice in taking action later determined to be unlawful, the client may choose to assert an ‘advice of counsel’ defence to demonstrate a lack of wrongful intent. The client generally must show (1) full disclosure of all material facts to the attorney before seeking advice; and (2) actual reliance on counsel’s advice in the good faith belief that the conduct was legal. See, e.g., United States v. West, 392 F. 3d 450, 457 (D.C. Cir. 2004). Invoking the ‘advice of counsel’ defence generally waives the attorney–client privilege protecting the underlying communications with counsel related to the advice, since the client is putting the contents of those communications at issue.
18. See, e.g., In re Grand Jury Investigation, 772 N.E.2d 9, 21-22 (Mass. 2002).
19. Hertzberg v. Veneman, 273 F. Supp. 2d 67, 76 (D.D.C. 2003).
20. See Fed. R. Civ. P. 26(b)(3).
21. 329 U.S. 495 (1947).
22. Id. at 511.
23. Id. at 511-12.
24. Id. at 511 (noting that ‘[p]roper preparation of a client’s case’ involves creating such documents, and that providing them to opposing counsel on ‘mere demand’ would be ‘demoralizing’ to the legal profession and disserve both clients and the ‘cause of justice’).
25. 422 U.S. 225, 238-39 (1975).
26. Id.
27. See Fed. R. Civ. P. 26(b)(3) advisory committee’s note to 1970 amendment (‘[T]he weight of authority affords protection of the preparatory work of both lawyers and nonlawyers . . . .’).
28. See Fed. R. Civ. P. 26(b)(3).
29. Id.
30. See Qwest, 450 F.3d at 1181, 1192. (See also Section 32.4 below).
31. See United States v. Schwimmer, 892 F.2d 237, 243-44 (2d Cir. 1989), cert. denied, 502 U.S. 810 (1991).
32. Id.
33. See, e.g., United States v. Bay State Ambulance, 874 F.2d 20, 28 (1st Cir. 1989); In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120, 126 (3d Cir. 1986); In re Grand Jury Subpoena Duces Tecum, 406 F. Supp. 381, 385 (S.D.N.Y. 1975).
34. See United States v. Weissman, 195 F.3d 96, 100 (2d Cir. 1999).
35. 222 F.3d 633 (9th Cir. 2000).
36. Id. at 635.
37. Id. at 637.
38. Id.
39. Id. at 637-38.
40. Id. at 637.
41. See Weissman, 195 F.3d at 100.
42. See, e.g., United States v. Almeida, 341 F.3d 1318, 1326 (11th Cir. 2003) (holding that statements made under the joint defence doctrine ‘do not get the benefit of the attorney–client privilege in the event that the co-defendant decides to testify on behalf of the government in exchange for a reduced sentence.’); United States v. Stepney, 246 F. Supp. 2d 1069, 1086 (N.D. Cal. 2003) (finding that when a former codefendant testified on behalf of the government, the joint defence team could cross-examine him on statements made pursuant to a joint defence agreement that (1) specified that the agreement would not create a duty of loyalty or an attorney–client relationship; and (2) explicitly permitted the lawyer to use any material or information provided by the testifying defendant during the course of the joint defence in later cross-examining the witness.)
43. Greenwald & Slachetka, supra note 6, at 15-16 (citing Wylie v. Marley Co., 891 F.2d 1463 (10th Cir. 1989)).
44. See, e.g., Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, Inc., 529 F.3d 371, 389 n.4 (7th Cir. 2008).
45. See Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348 (1985) (noting that ‘the power to waive the corporate attorney–client privilege rests with the corporation’s management’).
46. See In re Bevill, 805 F.2d at124-25; In re Hechinger Inv. Co., 285 B.R. 601, 606 (D. Del. 2002) (finding that former officers and employees could not assert the corporation’s privilege).
47. See In re Grand Jury Proceedings, 219 F.3d 175, 184 (2d Cir. 2000).
48. American Bar Association, Center for Professional Responsibility, Model Rules of Professional Conduct (2016), http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct.html.
49. ABA Model Rule of Professional Conduct 1.13(f).
50. 805 F.2d 120, 123, 125 (3rd Cir. 1986).
51. Id.
52. See, e.g., United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 119 F.3d 210, 215 (2d Cir. 1997).
53. Upjohn, 449 U.S. at 394-99 (explaining that attorney–client privilege protects attorney notes taken during interviews with employees during internal investigations).
54. See Fed. R. Crim. P. 26.2(a), (f)(2).
55. 756 F.3d 754 (D.C. Cir. 2014).
56. KBR, 756 F.3d at 757 (citing Upjohn, 449 U.S. 383).
57. Id. at 758-59.
58. In contrast, in Wultz v. Bank of China, the Southern District of New York granted a motion to compel documents collected by non-lawyers in the context of an internal investigation, where the party invoking the privilege failed to demonstrate that the documents were collected at the direction of an attorney to assist the attorney in providing legal advice. 304 F.R.D. 384, 395-97 (S.D.N.Y. 2015). The court also found that the work-product doctrine would not protect the documents from disclosure because the bank had failed to show that the documents would not have been created in ‘essentially similar form irrespective of the litigation.’ Id. at 395.
59. KBR, 756 F.3d at 758.
60. Upjohn, 449 U.S. at 403 (Burger, C.J., concurring) (finding a former employee’s communication is privileged when the employee ‘speaks at the direction of the management with an attorney regarding conduct or proposed conduct within the scope of employment’).
61. See, e.g., United States ex rel. Hunt v. Merck-Medco Managed Care, LLC, 340 F. Supp. 2d 554, 558 (E.D. Pa. 2004); Peralta v. Cendant Corp., 190 F.R.D. 38, 41 (D. Conn. 1999). Interviews about such topics may, however, be covered by work-product protection.
62. 295 F.R.D. 28 (E.D.N.Y. 1 November 2013), aff’d in part, 29 F. Supp. 3d 142 (E.D.N.Y. 21 January 2014).
63. Id. at 33.
64. Id. at 46. See also Welland v. Trainer, No. 00 Civ. 0738(JSM), 2001 WL 1154666, at *2 (S.D.N.Y. 1 October 2001) (finding certain communications between the investigator, who conducted the internal investigation, and in-house and outside counsel are protected by attorney–client privilege because the investigator received legal advice from counsel under circumstances in which the employee under investigation was an executive and litigation was expected if the employee were terminated).
65. Koumoulis, 29 F. Supp. 3d at 147 (finding that legal memoranda must contain more than ‘a stray sentence or comment within an email chain referenc[ing] litigation strategy or advice’).
66. Fed. R. Evid. 502(a).
67. Id.
68. David D. Cross & Nathiya Nagendra, Crowell & Moring LLP, The Demise of Subject Matter Waiver: Federal Rule of Evidence 502(a) Five Years Later, Bloomberg BNA: Digital Discovery & E-Evidence (7 November 2013), at 2, https://www.crowell.com/files/The-Demise-of-Subject-Matter-Waiver-Federal-Rule-of-Evidence-502a-Five-Years-Later.pdf.
69. Id.
70. See, e.g., Memorandum from Larry D. Thompson, Deputy Att’y Gen., U.S. Dep’t of Justice, to Heads of Department Components and United States Attorneys, regarding Principles of Federal Prosecution of Business Organizations (20 January 2003) (Thompson Memorandum); see also Memorandum from Paul McNulty, Deputy Att’y Gen., U.S. Dep’t of Justice, to Heads of Department Components and United States Attorneys, regarding Principles of Federal Prosecution of Business Organizations (12 December 2006) (McNulty Memorandum).
71. See, e.g., Sec. & Exch. Comm’n, SEC Rel. No. 34-44969, Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934 and Commission Statement on the Relationship of Cooperation to Agency Enforcement Decisions (the Seaboard Report)(23 October 2001) (explaining that a company that disclosed internal investigation interviews without asserting privilege had fully co-operated).
72. McNulty Memorandum, supra note 71.
73. Id. at 8-9.
74. Memorandum from Mark R. Filip, Deputy Att’y Gen., U.S. Dep’t of Justice, to Heads of Department Components and United States Attorneys, regarding Principles of Federal Prosecution of Business Organizations (28 August 2008) (Filip Memorandum).
75. Id.
76. Memorandum from Sally Quillian Yates, Deputy Att’y Gen., U.S. Dep’t of Justice, to Heads of Department Components and United States Attorneys, regarding Individual Accountability for Corporate Wrongdoing (9 September 2015) (Yates Memorandum).
77. Id. at 1.
78. Id. at 2.
79. Remarks of Deputy Att’y Gen. Sally Quillian Yates delivered at American Banking Association and American Bar Association Money Laundering Enforcement Conference (16 November 2015), available at https://www.justice.gov/opa/speech/deputy-attorney-general-sally-quillian-yates-delivers-remarks-american-banking-0 (‘[T]here is nothing in the new policy that requires companies to waive attorney–client privilege or in any way rolls back the protections that were built into the prior factors.’).
80. Id.
81. Fed. R. Evid. 502(b).
82. Fed. R. Evid. 502 advisory committee’s note.
83. Id.
84. Fed. R. Civ. P. 26(b)(5)(B).
85. Id.
86. See, e.g., In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289 (6th Cir. 2002); United States v. Mass. Inst. of Tech., 129 F.3d 681 (1st Cir. 1997); Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414 (3d Cir. 1991); In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988); Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981).
87. 572 F.2d 596 (8th Cir. 1977) (en banc).
88. Id. at 607.
89. Id. at 600.
90. Id. at 611.
91. Id.
92. See, e.g., In re Pac. Pictures Corp., 679 F.3d 1121 (9th Cir. 2012) (asserting that the doctrine has been ‘rejected by every other circuit to consider the issue since’ Diversified Industries).
93. Permian Corp., 665 F.2d at 1219-20.
94. 9 F.3d 230 (2d Cir. 1993).
95. Id. at 236.
96. Id.
97. See, e.g., Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1127 (7th Cir. 1997); In re Subpoenas Duces Tecum, 738 F.2d 1367, 1375 (D.C. Cir. 1984); In re Natural Gas Commodity Litig., No. 03 Civ. 6186 (VM) (AJP), 2005 U.S. Dist. Lexis 11950, at *39 (S.D.N.Y. 21 June 2005).
98. See David N. Powers & Sara E. Kropf, Disclosure of Internal Investigation Reports: A Legislative Solution to the McKesson Letter Dilemma, 32 Sec. Reg. L.J. 340, 341 (2004).
99. See, e.g., In re Columbia/HCA Healthcare Corp., 293 F.3d at 302-04; Westinghouse Elec. Corp., 951 F.2d at 1424-27, 1431.
100. 12 U.S.C. § 1828(x).
101. Section 1828(x)’s companion statute, 12 U.S.C. § 1785(j), applies the same rule to credit unions.
102. See In re Grand Jury Proceedings, No. M-11-189 (LAP), 2001 WL 1167497, at *7 (S.D.N.Y. 3 October 2001).
103. See United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961).
104. See, e.g., Fed. Trade Comm’n v. GlaxoSmithKline, 294 F.3d 141, 148 (D.C. Cir. 2002) (finding ‘no reason to distinguish between a person on the corporation’s payroll and a consultant hired by the corporation if each acts for the corporation and possesses the information needed by attorneys in rendering legal advice’); NXIVM Corp. v. O’Hara, 241 F.R.D. 109, 131-32 (N.D.N.Y. 2007) (finding that when attorney acted solely as coordinator of media relations, communications between attorney and client were not protected). See generally Michele DeStefano Beardslee, The Corporate Attorney–Client Privilege: Third-Rate Doctrine for Third-Party Consultants, 62 SMU L. Rev. 727, 744-55 (2009) (outlining the doctrine of attorney–client privilege when third parties are involved).
105. 296 F.2d 918 (2d Cir. 1961).
106. Id. at 919.
107. Id. at 922.
108. Id. at 921.
109. See, e.g., United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995) (‘Under certain circumstances . . . the privilege for communication with attorneys can extend to shield communications to others when the purpose of the communication is to assist the attorney in rendering advice to the client.’); United States v. Ackert, 169 F.3d 136, 139 (‘[T]he inclusion of a third party in attorney–client communications does not destroy the privilege if the purpose of the third party’s participation is to improve the comprehension of the communications between attorney and client.’); Exp.-Imp. Bank of the U.S. v. Asia Pulp & Paper Co., 232 F.R.D. 103, 113 (S.D.N.Y. 2005) (recognising, under Kovel, that ‘communications with a financial adviser are covered by the attorney–client privilege if the financial adviser’s role is limited to helping a lawyer give effective advice by explaining financial concepts to the lawyer’).
110. See U.S. Dept. of Educ. v. National Collegiate Athletic Ass’n., 481 F.3d 936, 937 (7th Cir. 2007) (recognising that, while there is no ‘private investigators privilege,’ there are circumstances where attorney–client privilege can ‘embrace a lawyer’s agents (including an investigator).’); see also, e.g., Clark v. City of Munster, 115 F.R.D. 609, 613 (N.D. Ind. 1987) (finding that statements made by a defendant to a private investigator employed by his attorney are protected by attorney–client privilege.)
111. Clark, 115 F.R.D. at 614.
112. See Brown v. Trigg, 791 F.2d 598, 601 (7th Cir. 1986); United States v. Nobles, 422 U.S. 225 (1975) (finding that by electing to present the investigator as witness, the defendant waived his privilege as to information collected by the investigator and his attorney).
113. See Grand Jury Subpoenas, 265 F. Supp. 2d 321, 321 (S.D.N.Y. 2003); Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000).
114. See, e.g., Grand Jury Subpoenas, 265 F. Supp. 2d at 325.
115. See Haugh v. Schroder Inv. Mgmt. N. Am., Inc., No. 02 Civ. 7955 (DLC), 2003 U.S. Dist. Lexis 14586, at *8 (S.D.N.Y. 25 August 2003); GlaxoSmithKline, 294 F.3d at 148.
116. 198 F.R.D. at 54.
117. Id.
118. Id. at 55.
119. 200 F.R.D. 213, 215 (S.D.N.Y. 2001).
120. Id. at 216.
121. 294 F.3d 141 (2002).
122. Id.
123. See Adlman, 68 F.3d at 1500 (finding that a party claiming protection under the attorney–client privilege has the burden of proving each of the elements of such a privilege by contemporaneous proof of a Kovel agreement).
124. See, e.g., In re G-I Holdings, Inc., 218 F.R.D. 428, 436 (D.N.J. 2003).
125. See, e.g., Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992).
126. 229 F.R.D. 441 (S.D.N.Y. 2004).
127. Id. at 444.
128. Id. at 447.
129. Id. at 448.
130. See In re Grand Jury Proceedings, 219 F.3d at 191 (‘[V]oluntary (as opposed to compelled) disclosure of documents to the SEC waived the company’s work-product privilege as to other parties.’); Westinghouse Elec. Corp., 951 F.2d at 1427 n.14 (finding privilege waiver in subsequent litigation where the party withdrew objections to SEC subpoena production and produced documents and noting that ‘had [party] continued to object to the subpoena and produced the documents only after being ordered to do so, we would not consider its disclosure of those documents to be voluntary’); In re Vitamin Antitrust Litig., No. MC 99-197 (TFH), 2002 WL 35021999, at *28 (D.D.C. 23 January 2002) (‘[C]ompulsion avoiding waiver requires that a disclosure be made in response to a court order or subpoena or the demand of a governmental authority backed by sanctions for noncompliance, and that any available privilege or protection must be asserted.’).
131. See Synthes Spine v. Walden, 232 F.R.D. 460, 463 (E.D. Pa. 2005) (collecting cases and requiring disclosure of privileged material); see also Galvin v. Pepe, No. 09-cv-104-PB, 2010 WL 3092640, at *6-7 (D.N.H. 5 August 2010) (citing id.).
132. See Sara Lee Corp. v. Kraft Foods, Inc., 273 F.R.D. 416, 419 (N.D. Ill. 2011) (recounting the history leading to the 2010 amendments to Rule 26).
133. Fed. R. Civ. P. 26(b)(4), Advisory Committee’s Note (2010).
134. See Commodity Futures Trading Comm’n v. Newell, 301 F.R.D. 348, 352 (N.D. Ill. 2014) (explaining that the government is not allowed to discover drafts of expert reports or attorney expert communications, unless communications fall within one of the three specific exceptions in Rule 26(b)(4)(C)).
135. Fed. R. Civ. P. 26(b)(4)(D).