Faced with the prospect of ever-increasing governmental/regulatory investigations, companies are frequently confronted with the “opportunity” to disclose information to federal agencies for various reasons, including the possibility of more favorable treatment. A dilemma arises when that production requires the disclosure of information protected by the attorney-client privilege or work-product doctrine.
In In re Qwest Communication International Inc., Securities Litigation, a case of first impression, the 10th U.S. Circuit Court of Appeals addressed whether a corporation could selectively waive the attorney-client privilege and/or work-product doctrine when it produced certain documents to the Securities and Exchange Commission and Department of Justice. Like most courts before it, the 10th Circuit rejected the “selective waiver.”