Federal Evidence Review

During Oversight hearings before the Senate Judiciary Committee on July 9, 2008, Attorney General Michael Mukasey responded to questions by Senator Arlen Specter (R-Pa) about possible changes in Justice Department policy concerning the waiver of attorney client privilege, as reflected in the McNulty Memo

Sen. Specter:

Let me move on to the question of the attorney-client privilege. Where you have the constitutional right to counsel which we all agree involves confidentiality. And where you have the clear-cut historic obligation of the government to prove its case, what is the justification for coercing a waiver of the attorney-client privilege? That is what happens in real life. In the KMG case, where the federal court in the Southern District of New York has found excesses by the government - where you have a clear-cut conflict of interest between the corporation, which is being asked for a waiver, and the individual employee who may have contractual rights to counsel, what is the justification? Can you sparse it, as the Thompson Memo does and the McNulty Memo -- that if it’s a fact question its decided by the Assistant Attorney General; if it’s an opinion or judgment question, its decided by the Deputy Attorney General? Isn't the attorney-client privilege so valuable that we shouldn't tamper with it by what has worked out to be coercive waivers of privilege?

Attorney General Mukasey:

Well, I think we share the belief as former prosecutors, and me as a former judge, that the attorney-client privilege is vital to clients getting advice from their lawyers. I think also we share the view that it should not be tampered with or coerced out of existence. And I understand that you visited with the [deputy] Attorney General and that he is going to be sending you a letter that will include real, significant proposed changes.

Sen. Specter:

How Soon?

Attorney General Mukasey:

Ah - Within a day or so.

Sen. Specter:

Will we have a memo that we can work from to get your position? Because I know ...

Attorney General Mukasey:

Yes.

Sen. Specter:

Your public statement is that you are satisfied with the McNulty Memo. Are you satisfied with the McNulty Memo?

Attorney General Mukasey:

I think my public statement was that the McNulty Memo could be used in a proper way. There is no such thing as a memo that achieves perfection and there are adjustments in the McNulty Memo that can and will be made and the Deputy proposes to make them. In particular it will no longer measure cooperation by waiver of the attorney-client privilege.

Sen. Specter:

Well, will we get more than a letter? Are we going to get a memo that we can work from to try to see if we can resolve this -- while a compromise or accommodation -- or are we going to have to move to legislative?

Attorney General Mukasey:

I think what's going to happen is a mem - a letter that's going to be - that can be - used to prepare a memorandum. That a -

Sen. Specter:

Well, when will we get the memorandum?

Attorney General Mukasey:

You'll get the letter in a couple of days. The memorandum will be the subject of discussions that may well produce a memorandum in short order.

Sen. Specter:

Well, the shorter the order the better because it - a matter percolating - affecting a lot of people.

Attorney General Mukasey:

It does - And I don't minimize it. I think that we tried to strike a balance with the McNulty Memo - if we haven't and there are ways to improve it, then we are bound and determined to improve it, and I think that letter will show that we are.

Hours after the Attorney General’s testimony on July 9, Deputy Attorney General Mark Filip sent Senate Judiciary Committee Chairman Patrick Leahy and Ranking Minority Member Arlen Specter a letter summarizing his review of DOJ policy, as the Attorney General has promised in his testimony. This letter requested time to implement department changes before any legislation is considered. This letter and the response to it, was the subject of an earlier blog post, DOJ Reevaluating McNulty Attorney-Client Privilege Memo. Read more

Deputy Attorney General Addresses Waiver Of Attorney-Client Privilege As A Factor In Current Corporate Investigation Policy

During Attorney General Michael Mukasey’s testimony before the Senate Judiciary Committee on July 9, 2008, the subject of the McNulty Memorandum and DOJ application of the attorney client privilege in corporate investigations came up. Attorney General Mukasey noted the department was in the process of considering revisions to the policy reflected in the McNulty Memo. The AG announced that a new policy would be set out in a forthcoming letter to the Committee by Deputy Attorney General Mark Filip. Read more

In response to a panel’s suggestion of a conflict with other circuits, the Sixth Circuit will rehear en banc Adkins v. Wolever, 520 F.3d 585 (6th Cir. 2008), vacated after rehearing en banc granted (6th Cir. May 23, 2008) on whether state or federal spoliation law applies in diversity suit

Plaintiff Adkins, a Michigan state prisoner, filed a civil rights action against a prison guard claiming the guard assaulted and injured him. During civil discovery, the plaintiff requested film and photographic evidence concerning the incident. The requested evidence was not provided and the defendant was told that "all such evidence [wa]s no longer available and may have been destroyed." Adkins, 520 F.3d at 586. At trial, the plaintiff requested a spoliation instruction to allow the jury to draw an adverse inference from the unavailable evidence. In applying state law, the trial court denied the request. After the defendant prevailed at trial, on appeal the plaintiff challenged the trial court’s ruling. Read more

The U.S. Judicial Conference and Congress have considered separate measures that would affect the attorney-client privilege. The House approach would codify a new statute whereas the Senate approach adopts a new FRE 502. The other bill would adopt a new statute. How close is either measure to becoming law?

For nearly a decade, there has been a national debate on what guidelines should apply in criminal cases involving corporations. In 1999, the Department of Justice promulgated guidelines for prosecuting corporations. See Memorandum from Deputy Attorney General Eric H. Holder, Jr. to Heads of Department Components and U.S. Attorneys, Bringing Criminal Charges Against Corporations (June 16, 1999) [Holder Memo] This policy was updated in 2003 in the Memorandum from Deputy Attorney General Larry Thompson to Heads of Department Components and U.S. Attorneys, Principles of Federal Prosecution of Business Organizations (Jan. 20, 2003) [Thompson Memo] Read more

As the Standing Committee on Rules of Practice and Procedure went into its June 9-10, 2008, meeting, it was to consider a recommendation from the Advisory Committee on Evidence Rules to amend FRE 804(b)(3).

Under the proposal, the corroborating circumstances requirement of FRE 804(b)(3) would apply to statements against penal interest offered by the prosecution - a change from the current requirement that only the "accused" need to show corroborating circumstances. But the latest report of the results of the Standing Committee meeting is silent about the fate of the proposed FRE 804(b)(3) amendment.

The only reported action by the Standing Committee was to approve publishing for public comment "restyled evidence Rules 101-415" with the actual publication to occur when the entire Federal Rules of Evidence has been restyled. It is not clear what, if anything, happened to the proposed amendment to FRE 804(b)(3).Read more