Companies being investigated by the government often decide to disclose attorney-client privileged or work product material to investigators, in the hope of winning cooperation credit from the government. While the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) have issued new policies prohibiting demands for privileged material under certain circumstances,1 the decision whether to waive and the scope of any such waiver exists in every investigation.2 Circuit courts and commentators have held widely different views on whether disclosure to the government in these circumstances waives privilege or work product protection in related civil litigation. As a result of these divergent approaches, uncertainty reigns, and a recent effort in Congress to pass a statute providing a uniform rule has failed.3
In this environment, companies seeking to share protected information with the government without having to provide it to civil plaintiffs should consider other approaches This article raises a potential approach that remains relatively unexplored and that may be available to certain highly regulated companies.
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