Federal Evidence Review

Why Is The Selective Waiver Issue Receiving Little Meaningful Discussion In The Debate Over The Attorney-Client Privilege Protection Act?

As we noted on July 7 and June 24, two separate and distinct measures have passed either the House or Senate concerning the attorney-client privilege. The legislation gaining most of the recent attention is the Attorney-Client Privilege Protection Act (introduced as H.R. 3013 and S. 3217) which would enact a new statute: 18 U.S.C. § 3014. On November 13, 2007, the House of Representatives passed nearly identical legislation in H.R. 3013. Senator Arlen Specter is strongly promoting action in the Senate on the similar measure he introduced, S. 3217.

Selective waiver is a central issue in recent years involving the assertion of the attorney-client privilege by business organizations. Surprisingly, the selective waiver issue is not being mentioned in the debate concerning the Attorney-Client Privilege Protection Act.

What is the importance of the selective waiver issue? Many corporations may voluntarily decide to provide materials covered by the attorney-client privilege and work product doctrine but may refrain from doing so based on concerns that a third party will later claim the material has been waived for all purposes. See, e.g., In re Grand Jury Proceedings, 78 F.3d 251 254 (6th Cir. 1995) (laboratory's owner and president waived Attorney-Client privilege by disclosing protected information to government investigators).

In addressing this issue, some corporations have entered into selective waiver agreements with the government, memorializing that the disclosure of the protected information to the government does not waive the privilege to any third parties. However, these agreements may be challenged later in court. In an environment of uncertainty, the scope of the protection by the privilege becomes equally doubtful. Some companies therefore refrain from disclosing information to the government that may otherwise be provided if the information was used only by the government.

The circuits are split on whether a selective waiver rule should apply, with most circuits rejecting the selective waiver doctrine. See In re: Qwest Communications International Inc., Securities Litigation, 450 F.3d 1179 (10th Cir. 2006) (discussing circuit split) (reviewed in 3 FED. EVID. REV. 885 (July 2006)). Given the circuit split, some believe Congress should resolve this issue.

The Attorney-Client Privilege Protection Act would generally bar federal attorneys in criminal and civil enforcement actions from requesting or using communications protected by the Attorney-Client privilege or materials covered by the work product doctrine. The Act would allow business organizations to voluntarily waive the Attorney-Client privilege or attorney work product doctrine. Proposed Section 3014(d) provides:

(d) VOLUNTARY DISCLOSURES.— (1) IN GENERAL.—Nothing in this section may be construed to prohibit an organization from making, or an agent or attorney of the United States from accepting, a voluntary and unsolicited offer to waive the protections of the attorney-client privilege or attorney work product doctrine.

Significantly, this voluntary disclosure provision is not meaningful without a companion selective waiver provision. Thus far, the debate on the Attorney-Client Privilege Protection Act has not genuinely focused on this aspect.

The selective waiver issue already has been the subject of hearings and congressional action. Language for a selective waiver provision was drafted by the U.S. Judicial Conference and has passed the Senate in separate legislation, S. 2450, on February 27, 2008. (For a timeline of the developments leading to the current legislative proposals, see the FederalEvidence.com Amendments Page.

Any comprehensive legislative change in this area would be incomplete without considering the selective waiver issue. If Congress enacts the Attorney-Client Privilege Protection Act in its current form, corporations will continue to confront the dilemma of the consequences of voluntarily providing protected information to the government. Since this issue has already received comprehensive review in judicial and congressional hearings and debate, there appears to be no reason it cannot become part of the discussion on the merits of the Attorney-Client Privilege Protection Act. If comprehensive reform of the attorney-client privilege is enacted, shouldn’t it also address the selective waiver issue? If Congress does not address this issue, will some courts conclude that Congress is not interested in the selective waiver issue?

There are two primary options:

1. The Attorney-Client Privilege Protection Act could be amended to include a provision comparable to the language drafted by the U.S. Judicial Conference and passed by the Senate.
2. The House-passed version of the Attorney-Client Privilege Protection Act could be referred to a conference committee with the Senate-passed U.S. Judicial Conference proposal where key differences can be ironed out.

Under either path, at least the merits of the important selective waiver issue would become part of the current debate on the Attorney-Client Privilege Protection Act.