During government investigations, companies must often decide whether to disclose privileged communications and attorney work product. Federal courts and commentators have considered at great length the consequences of such disclosure: whether a company may “selectively” waive privilege and work product protection when disclosing information to a government agency while preserving the protected status of that material as to other parties and proceedings. Federal case law reflects a clear trend toward rejection of the selective waiver doctrine, though the law is not uniform. Courts in the Second Circuit, notably, have allowed selective waiver under limited circumstances.
While the divergence among federal courts creates some uncertainty, the viability of selective disclosure is even less clear in New York state courts. The case law is sparse. An Appellate Division opinion in 2008 commented on selective waiver in dicta; two later unpublished state Supreme Court decisions reached different results regarding selective disclosure without addressing the doctrine expressly.
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