Law Commons^™

Corporate Investigations, Attorney-Client Privilege, And Selective Waiver: Is A Half-Privilege Worth Having At All?, Colin P. Marks

Seattle University Law Review

This article will explore both the various problems that arise with a policy that essentially mandates waiver of the attorney-client privilege as well as the limited appeal of the selective waiver theory as a compromise position. It concludes that selective waiver is inadequate in addressing the many problems created by policies that coerce waiver and that a more desirable solution is to eliminate or amend the governmental policies that coerce waiver. Part II of this article explains and explores the metes and bounds of the attorney-client privilege and work-product protection. Part III explains the development of the selective waiver theory, …

Corporate Investigations, Attorney-Client Privilege, And Selective Waiver: Is A Half-Privilege Worth Having At All?, Colin P. Marks

Faculty Articles

As the title suggests, this article is an analysis of the selective waiver doctrine, which allows a party to disclose materials protected by the attorney-client and work product privileges to the government during investigations without waiving the privilege as to third-party litigants. Specifically, the article analyzes the development of the selective waiver doctrine and why recent policies adopted by governmental agencies, specifically the Department of Justice and SEC, have made this doctrine a forefront of conversation amongst litigators, legislators and academics. But is a blanket adoption of the selective waiver doctrine wise?

Courts have taken a variety of approaches to …