May you disclose a privileged document to a government-enforcement agency and, later, successfully claim that the privilege precludes disclosure to an adversary in a civil proceeding? Generally, there is no common-law selective-waiver doctrine, but the SDNY, in In re: Ex Parte Application of financialright GmbH, 2017 WL 2879696 (SDNY June 23, 2017), found no privilege waiver when Volkswagen’s lawyers disclosed privileged information to the Justice Department under a Non-Disclosure Agreement. You may read the opinion here.
Internal Investigation into Emissions Scandal
Volkswagen’s 2015 emissions scandal—where it inserted software to circumvent U.S. emissions tests—is well known. VW retained Jones Day, which conducted an extensive factual investigation as part of its representation. Jones Day analyzed millions of documents and interviewed hundreds of VW employees.
DOJ Deal More…
In a significant ruling that may exacerbate the continuing fallout from Baylor University’s sexual-assault scandal—and provide lessons for those conducting internal investigations—the USDC WDTX rejected Baylor’s “unsupported and unconvincing” privilege argument and ordered it to produce “all materials, communications, and information” provided to its investigating law firm.
The court held that Baylor’s intentional release of the law firm’s factual findings and recommendations necessarily disclosed attorney–client communications and constituted privilege waiver. Doe v. Baylor Univ., No. 16–CV–173–RP (W.D. Tex. Aug. 11, 2017). You may read the opinion here.
In an earlier post titled Baylor Univ. in Major Battle over Law Firm’s Investigation Documents, I set the stage for the Title IX plaintiffs’ motion to compel Baylor to produce documents provided to Pepper Hamilton, which it retained to conduct an “independent and external review of Baylor University’s institutional responses to Title IX and related compliance issues.” More…
As in-house counsel or outside corporate counsel, how would you handle this situation? Two employees download your corporate client’s proprietary information about Product X, join a competitor, and—surprise—a similar Product X from the competitor hits the market just a few months later.
Your client conducts a forensic investigation and discovers irrefutable evidence of the employees’ theft. Sure, you may file a civil action for trade-secrets misappropriation, but your client wants the employees criminally prosecuted.
Should you disclose the investigator’s report to the U.S. Attorney’s Office to aid the prosecution? Would that limited disclosure result in privilege waiver in the parallel civil case? Isn’t there some type of privilege-sharing doctrine, such as a so-called joint–prosecution privilege, or even the common–interest doctrine that would prevent privilege waiver? More…