Corporations facing criminal or regulatory investigation have long faced the question of whether to turn over privileged material to the investigating government entity. Waiving privilege has historically resulted in increased cooperation “credit” from the Department of Justice1 and the Securities and Exchange Commission.2
However, recent changes to DOJ and SEC guidelines now forbid requests that corporations waive privilege and preclude consideration of whether the corporation waived privilege in assessing cooperation. Currently pending legislation would formalize these revisions and extend them to all government agencies. But even if codified by Congress, these changes are probably insufficient to fully exorcise the “culture of waiver” that developed under earlier guidelines. The revised guidelines mandate that all relevant facts be disclosed to the government, so corporations will still have to choose between disclosing protected information and being deemed “uncooperative.”
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