Recently, critics have attacked federal law enforcement policies that encourage corporate targets to disclose sensitive information protected by the corporate attorney-client privilege and work-product doctrine, arguing that the policies are coercive, fundamentally unfair, and destined to chill the free flow of information to corporate counsel. The most readily apparent collateral consequence of these policies, however, has been corporations’ loss of privilege protection in subsequent litigation. Good corporate citizens that have chosen to cooperate with the government in this manner have been punished with broad findings of waiver and the dissemination of protected information to companies’ civil adversaries. To protect companies from this punitive result and to encourage cooperation with law enforcement, the Advisory Committee on the Federal Rules of Evidence drafted and published proposed Federal Rule of Evidence 502(c) to allow “selective waiver” of the attorney-client privilege and work-product protection to federal entities without a waiver as to any other party. On the verge of obtaining this protection, corporate counsel performed a surprising about-face and argued against the proposal, complaining that it would exacerbate the existing “culture of waiver” in federal investigations. In the face of vocal opposition, the Advisory Committee declined to recommend a selective waiver rule, leaving it to Congress to decide the fate of selective waiver legislation.
This Article opines that selective waiver legislation would represent a valuable palliative measure that would serve corporate clients and their stakeholders, as well as the public interest, in effective corporate oversight. It examines the federal policies that create corporate waivers, concluding that waivers reflect a legitimate prosecutorial technique that is indispensable in light of the mounting expense and complexity of corporate investigations in the twenty-first century. The Article also demonstrates that judicial rejection of selective waiver ignores the evolution of privilege doctrine from a paradigm of rigid absolutism to one of fairness and flexible party autonomy over protected information, concluding that selective waiver can fit comfortably into this modern vision of privilege. Finally, it examines the contours of appropriate selective waiver legislation.