When a corporation is under investigation by a government entity for suspicion of improper or illegal conduct (e.g., fraudulent reporting, misrepresentations), the corporation may comply, for a variety of reasons, with the government investigation. As part of its compliance, a corporation must make the critical business decision of what, if any, documents to produce to the government. In the event a corporation decides to disclose documents that may otherwise be protected by attorney-client privilege or the attorney work-product doctrine, the issue becomes whether the corporation waives the protection afforded by these privileges. If these protections are waived, any privileged documents disclosed may be deemed waived for all purposes and, therefore, used not only by the government in criminal prosecutions, but also as a basis for new civil filings or in support of ongoing litigation.
THE SELECTIVE WAIVER DOCTRINE
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