In 2006, a landmark decision by the U.S. District Court for the Southern District of New York resulted in a dramatic change in the Department of Justice’s policies and practice in the prosecution of corporations, including its policy regarding requests for waiver of attorney-client and work-product protections. That decision is United States v. Stein, 435 F.Supp.2d 330 (S.D.N.Y. 2006). In the years since the issuance of the Stein decision, the DOJ’s policy with respect to waiver of attorney-client privilege and attorney work-product privilege has evolved significantly. While the DOJ’s current approach to such waivers is considerably less aggressive than its pre-Stein approach, the DOJ’s most recent pronouncement on the issue of waiver still presents pitfalls that attorneys should keep in mind when counseling corporations in DOJ investigations.

Prior to the Stein decision, the DOJ had issued advisory memoranda setting forth guidelines for the prosecution of corporations. One of the most controversial aspects of the advisory memos was the DOJ’s approach to what it considered a company’s “willingness to cooperate.” The memos were generally interpreted as requiring corporations to waive the attorney-client and work-product privileges during a government investigation in order to avoid a corporate prosecution. This DOJ practice resulted in several challenges to the DOJ’s policies, including Stein.

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