Court: Disclosing to the Government Waives Privilege

Litigation and Dispute Resolution Partners Vito Costanzo and Vince Farhat, and Associate Franco Tenerelli, are quoted in this Compliance Week article.

According to a recent Ninth Circuit Court of Appeals decision, companies can't waive their right to attorney-client privilege and have it too. The court ruled that the voluntary disclosure of potentially privileged documents to the government waives attorney-client privilege and, thus, may be subject to discovery in any parallel or subsequent civil proceedings. "It's the first time that the Ninth Circuit has effectively ruled on this issue of selective waiver," said Mr. Tenerelli.

According to Mr. Costanzo, because a confidentiality agreement with the government cannot necessarily be relied upon, it makes the initial decision of whether to disclose privileged materials "somewhat more complicated." If the decision is made to turn over documents to the government, any potentially privileged material should be redacted, or otherwise risk facing "irrevocable implications with respect to privilege," said Mr. Farhat.