DoJ Wants Review Process For Privilege Waiver Requests

The Department of Justice last month issued a directive requiring federal prosecutors to create a review process for supervisory approval of requests for companies to waive the attorney-client privilege and work product protection. But this should not be interpreted as a weakening of the DoJ’s interest in obtaining privileged materials, according to experts.

The Oct. 21 directive, from Acting Deputy Attorney General Robert McCallum Jr., concerns implementation of the so-called Thompson Memorandum, which lays out factors that must be considered when determining whether to charge a company with a crime. One of the factors to be considered is the company’s “timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of corporate attorney-client and work product protection.”

In order to “ensure that federal prosecutors exercise appropriate prosecutorial discretion under the principles of the Thompson Memorandum, some United States Attorneys have established review processes for waiver requests that require federal prosecutors to obtain approval from the United States Attorney or other supervisor before seeking a waiver of the attorney-client privilege or work product protection,” McCallum wrote.

Calling this a “best practice,” McCallum instructed all federal prosecutors to establish a written waiver review process. “Such waiver review processes may vary from district to district … so that each United States Attorney … retains the prosecutorial discretion necessary, consistent with their circumstances, to seek timely, complete and accurate information from business organizations.”

The Department of Justice did not respond to a request to comment on McCallum’s memo.

Action Won’t Mute Criticism

Hochberg

Joshua Hochberg, a partner with McKenna Long & Aldridge in Washington and the former chief of the fraud section in the DoJ’s Criminal Division, notes that “there has been vocal criticism by the defense bar of [the] increased number of [waiver] requests. The [Justice] Department thought there was a need to at least ensure that there is some review process in each office.”

However, the directive “doesn’t seem to in any way limit or give guidance as to when it is appropriate to seek waiver of privileged documents,” Hochberg notes. “If you believe that requests for a waiver are a problem—and many members of the defense bar do believe that—this does not solve that problem. I don’t think that it will mute the criticisms.”

Small

Daniel Small, a partner with Duane Morris in Miami, agrees that McCallum’s directive doesn’t suggest that the Justice Department’s zeal for privileged documents has diminished. “There’s nothing that says that any request will be denied,” he notes.

But the DoJ may “worry it’s going to get too out of hand—and that, somewhere along the line, there will be a case that will prompt a judge or Congress to propose limitations [on waiver requests],” says Small, who is a former federal prosecutor.

MEMO EXCERPT

“...To ensure that federal prosecutors exercise appropriate presecutorial discretion under the principles of the Thompson Memorandum, some United States Attorneys have established review processes for waiver requests that require federal prosecutors to obtain approval from the United States Attorney or other supervisor before seeking a waiver of the attorney-client privilege or work production protection. Consistent with this best practice, you are directed to establish a written waiver review process for your district or component. The United States Attorneys' Manual will be amended to reflect this policy...”

Source

Memo From Robert D. McCallum Jr, Acting Deputy AG: Waiver Of Attorney-Client And Work Product Protection

There is a legitimate concern “that this should be something that’s taken seriously—it should not be something that’s done willy-nilly,” according to Small. “It ought to be treated very seriously and [the DoJ directive suggests] that there may be some people who are just doing it too easily. The notion of waiving attorney-client privilege is a serious issue. It should not just [be done] on a random or automatic basis”

Requiring prosecutors to put their reasons for seeking waiver requests “will help enforce some degree of rationality to the process,” says Small, who notes that a review process “provides some failsafe for U.S. attorneys who may be overusing or abusing the process [and also] provides the Department of Justice with ability to say and show that they’re treating it seriously.”

Small calls “puzzling” the aspect of the DoJ memo that allows U.S. attorneys to have waiver policies that aren’t uniform. “The attorney-client privilege does not vary from one district to another—and should not vary from one district to another,” says Small, who speculates that perhaps the intent was to allow districts that already have developed a waiver process to retain their existing procedures.

Hochberg says “it’s not unprecedented” for the DoJ to allow flexibility in procedures from office to office, but “the lack of focus on exactly what that approval process should be is unusual.”

‘What They’re Doing Is Worthless’

Podgor

Ellen Podgor, who teaches white-collar crime as a visiting law professor at Stetson University School of Law, is highly critical of the recent trend for prosecutors handling white-collar investigations to routinely request access to materials and information that would otherwise be protected from disclosure on attorney-client privilege and work product grounds.

According to Podgor, the DoJ is “attempting to placate all of the groups out there [that have criticized this trend] by saying, ‘Look, we’re doing something.’”

But Podgor says “what they’re doing is worthless. They’re merely saying that we’re going to have a system where it’s going to be coordinated internally in each office. They’re not admitting the fact that there really is an issue out there of people who are haphazardly requesting these waivers of the attorney-client privilege and it’s downright wrong. … I don’t think that by saying we’re going to have oversight in the office really accomplishes anything.”

If the DoJ “really cared about this” it would require that all waiver requests be approved by the Criminal Division, Podgor says, noting that the McCallum memo won’t change anything about the way corporations respond to waiver requests—other than to prompt companies to check to see if the assistant U.S. attorney making the request has complied with office policy.

It’s “absurd,” says Podgor, to allow different offices to have different approval procedures. “It flies in the face of [the DoJ’s] entire philosophy with regard to Sentencing Guidelines,” she says. “How can you say you want uniformity at the backend but not be willing to give that same uniformity at the front end?”