Corporate America Fights Back: The Battle Over Waiver of the Attorney-Client Privilege

Last Term, in Bell Atlantic Corp. v. Twombly, the U.S. Supreme Court dramatically reinterpreted Federal Rule of Civil Procedure 8(a) (2), which requires a "short and plain" statement of a plaintiff's claim. This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post- Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. This Article seeks to transcend the feverish rhetoric dominating the debate by undertaking a careful cost-benefit approach to the matter. It concludes that the Department of Justice's recent policy statement on privilege waiver, contained in Deputy Attorney General Paul McNulty's 2006 Memorandum, merits a chance to work—with a number of important caveats that are fleshed out in the text.