NewYorkUniversity
LawReview
Current Issue

Volume 83, Number 4

October 2008

The Costs of Waiver: Cost-Benefit Analysis as a New Basis for Selective Waiver of Attorney-Client Privilege

Mathew S. Miller

The nature of corporate criminal liability and the extreme consequences of indictment or conviction place great pressure on corporations to cooperate with federal prosecutors as they investigate corporate wrongdoing. This pressure often leads corporations to disclose privileged corporate communications, including internal investigation reports and notes from employee interviews, to aid prosecutors in their investigation. In most jurisdictions, once these documents are disclosed, the protections of the attorney-client privilege are waived as to everyone—a total waiver. However, in a minority of jurisdictions, when privileged corporate communications are disclosed to the government as part of a criminal investigation, the privilege is waived only as to the government and remains to prevent discovery by third parties, including civil plaintiffs—a selective waiver. Courts have provided various rationales for both positions, although none has been universally endorsed and all are subject to criticism. This Note provides a new justification for the selective waiver rule. It argues that utility-maximizing prosecutors will be more likely to ask for these critical privileged corporate communications under a selective waiver rule because of the high costs of the total waiver rule. This, in turn, will lead to a more efficient and robust investigation and prosecution of corporate crime.