Testimonial Privileges

Summary of ContentsChapter 1 The Attorney-Client PrivilegeChapter 2 The Work Product Doctrine IntroductionChapter 3 The Accountant—Client PrivilegeChapter 4 The Privilege Against Self-IncriminationChapter 5 Spousal PrivilegesChapter 6 The Clergy Communications PrivilegeChapter 7 The Physician-Patient,

Psychotherapist-Patient, and RelatedPrivileges

Volume 2Chapter 8 The Journalist's PrivilegeChapter 9 Executive and Governmental PrivilegesChapter 10 Settlement Negotiations Privilege

Table of Laws and Rules

Table of Cases

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Table of ContentsCHAPTER 1 THE ATTORNEY-CLIENT

PRIVILEGE

I. INTRODUCTION§ 1:1 Rationale for the privilege§ 1:2 The privilege de�ned§ 1:3 —Federal Rule of Evidence 501§ 1:4 —Proposed Federal Rule of Evidence 503; Uniform Rule of

Evidence 502§ 1:5 —Common law de�nitions§ 1:6 State privilege law§ 1:7 Choice of law

II. THERE MUST BE A COMMUNICATION§ 1:8 In general§ 1:9 Underlying facts not privileged§ 1:10 The existence and nature of the professional relationship

and the services performed§ 1:11 The identity of the client§ 1:12 The address or whereabouts of the client§ 1:13 Demeanor, acts, and physical characteristics of the client§ 1:14 Real evidence§ 1:15 Pre-existing documents sent to the attorney§ 1:16 Minutes or memoranda of corporate meetings§ 1:17 Attorney-prepared materials in the attorney's �les§ 1:18 Communications from the attorney

III. THE REQUIREMENT OF PRIVILEGEDPERSONS—IDENTIFYING THE ATTORNEY

§ 1:19 In general§ 1:20 Bar membership§ 1:21 In-house counsel§ 1:22 Investigative counsel; Special review counsel§ 1:23 Agents and representatives§ 1:24 Accountants§ 1:25 —Insurance claims investigators§ 1:26 —Experts§ 1:27 Persons reasonably believed to be attorneys

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IV. THE REQUIREMENT OF PRIVILEGEDPERSONS—IDENTIFYING THE CLIENT

§ 1:28 In general§ 1:29 Successors to the client§ 1:30 Representatives and agents of the client§ 1:31 Communications with third parties§ 1:32 Joint clients§ 1:33 The organization: Identifying the client§ 1:34 Representation of individual employees by organizational

counsel§ 1:35 Former employees of organizational clients§ 1:36 Privilege within the corporation§ 1:37 Actions by shareholders and others to whom �duciary

duties are owed

V. THE COMMUNICATION MUST BE MADE INCONFIDENCE.

§ 1:38 In general§ 1:39 The requirement to guard con�dences§ 1:40 The risk of inadvertent disclosure§ 1:41 Con�dentiality within organizations§ 1:42 E-mail and con�dentiality

VI. THE PURPOSE OF THE COMMUNICATIONMUST BE TO SECURE LEGAL ADVICE

§ 1:43 In general§ 1:44 Cases of mixed purpose: Business and technical advice§ 1:45 Ministerial and nonlegal services: The lawyer as clerk,

agent, negotiator, witness, or scrivener§ 1:46 Accounting services; Tax returns

VII. EXCEPTIONS TO THE APPLICABILITY OFTHE PRIVILEGE

§ 1:47 The crime-fraud exception§ 1:48 Abrogation of privilege by sixth amendment right of

confrontation§ 1:49 Disputes between attorney and client; Defense by

attorney against charges of wrongdoing; Collection offees

VIII. ASSERTING THE PRIVILEGE§ 1:50 In general§ 1:51 Assertion of the privilege by an organization§ 1:52 Assertions by the attorney; Depositions of counsel

Testimonial Privileges

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§ 1:53 Rules of privilege in grand jury proceedings§ 1:54 Grand jury subpoenas issued to attorneys§ 1:55 The privilege in congressional investigations§ 1:56 Proving the elements of privilege§ 1:57 Privilege logs§ 1:58 In camera review§ 1:59 Sanctions for violating discovery rules§ 1:60 Obtaining appellate review of rulings regarding privilege§ 1:61 Inferences drawn from assertions of privilege§ 1:62 Duration of the privilege

IX. WAIVER OF THE PRIVILEGE§ 1:63 In general§ 1:64 Authority to waive privilege§ 1:65 Intentional disregard of con�dentiality§ 1:66 Disclosure within an organization§ 1:67 Disclosure by testimony§ 1:68 Disclosure through document production§ 1:69 Disclosure to auditors§ 1:70 Disclosure during negotiations§ 1:71 Making privileged communications an issue in the case§ 1:72 Waiver by use of privileged documents to refresh

recollection§ 1:73 Disclosure of privileged documents to testifying expert

witnesses§ 1:74 Inadvertent disclosure§ 1:75 Involuntary disclosure§ 1:76 The scope of waiver§ 1:77 Selective waiver

X. EXTENSIONS OF THE PRIVILEGE BASEDON COMMON INTEREST

§ 1:78 In general§ 1:79 Joint defense privilege§ 1:80 Common interest doctrine§ 1:81 A�liates and subsidiaries§ 1:82 Insurance companies and the common interest privilege

XI. PATENTS AND THE ATTORNEY-CLIENTPRIVILEGE

§ 1:83 Patents and legal advice§ 1:84 Waiver of privilege and the good faith reliance on advice

of counsel defense to willful infringement§ 1:85 Scope of the waiver§ 1:86 Bifurcating trial and staying discovery

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§ 1:87 The inequitable conduct defense and the crime-fraudexception

§ 1:88 Patent agents§ 1:89 Application of attorney-client privilege to foreign patent

agent communications

XII. THE SELF-CRITICAL ANALYSISPRIVILEGE

§ 1:90 Self-critical analysis privilege

XIII. THE ATTORNEY'S DUTY TO PROTECTCONFIDENCES

§ 1:91 Attorney's duty to protect con�dential information§ 1:92 Attorney's duty to disclose§ 1:93 —Disclosure in the corporate context§ 1:94 Disclosure under securities laws

XIV. INTERNAL INVESTIGATIONS§ 1:95 Internal investigations generally§ 1:96 Internal investigations and the attorney-client privilege§ 1:97 Internal investigations and the work product doctrine

XV. RECOMMENDATIONS§ 1:98 Recommendations

CHAPTER 2 THE WORK PRODUCTDOCTRINE INTRODUCTION

I. INTRODUCTION§ 2:1 Origins and rationale of the work product doctrine:

Hickman and Rule 26(b)(3)

II. TYPES OF WORK PRODUCT§ 2:2 Opinion work product§ 2:3 Selection of documents as opinion work product§ 2:4 Ordinary work product§ 2:5 Mixed opinion and ordinary work product

III. ASSERTING WORK PRODUCTPROTECTION

§ 2:6 Overview: 3-part test§ 2:7 The mechanics of asserting work product protection§ 2:8 Documents, tangible things, and other protected material


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§ 2:9 Work product must be prepared by or for a party or byor for its representative

§ 2:10 Work product must be prepared in anticipation ofimminent litigation

§ 2:11 Required imminence of litigation§ 2:12 Preparation of documents must be motivated by

litigation§ 2:13 Using previously prepared documents in subsequent

litigation

IV. SCOPE OF WORK PRODUCT PROTECTION§ 2:14 Opinion work product: Near absolute protection§ 2:15 Ordinary work product: May be overcome by showing of

substantial need and undue hardship§ 2:16 Showing substantial need§ 2:17 Showing undue hardship

V. WAIVER OF WORK-PRODUCT PROTECTION§ 2:18 Consent and defective assertion§ 2:19 Authority to waive work product protection§ 2:20 Voluntary disclosure§ 2:21 Inadvertent disclosure§ 2:22 ‘‘At issue’’ defenses: Advice of counsel§ 2:23 Testimonial use§ 2:24 Scope of waiver§ 2:25 Selective waiver: Reporting to government agencies

VI. WAIVER: USE OF DOCUMENTS BYWITNESSES AND EXPERTS

§ 2:26 Refreshing recollection of fact witnesses§ 2:27 Use of documents by testifying experts§ 2:28 Consulting experts who become testifying experts§ 2:29 Waiver of the privilege as to a withdrawn but previously

designated testifying expert

VII. EXCEPTIONS TO WORK PRODUCTPROTECTION

§ 2:30 The crime-fraud exception§ 2:31 Exception for attorney misconduct§ 2:32 Fiduciary exception: The Garner doctrine§ 2:33 Common interest extensions of work product protection

CHAPTER 3 THEACCOUNTANT—CLIENT PRIVILEGE

§ 3:1 Introduction

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I. FEDERAL LAW§ 3:2 The Couch and Arthur Young decisions§ 3:3 IRS § 7525§ 3:4 Accountants and the attorney-client privilege§ 3:5 Risk of waiver of attorney-client privilege and work

product protection through disclosure to auditors

II. STATE LAW§ 3:6 Generally§ 3:7 Who is an accountant? Agents of accountants§ 3:8 Who is an accountant? Georgaphic applicability of state

statutes§ 3:9 Who is the client?§ 3:10 Who may assert the privilege?§ 3:11 What types of communications and information are

protected?§ 3:12 The con�dentiality requirement§ 3:13 When is the privilege waived? Waiver by consent to

disclosure§ 3:14 Exceptions to the privilege

APPENDIX 3-1 State Statutes on theAccountant-Client Privilege

APPENDIX 3-2 Other State Statutes Regarding Con�dentialityof Accountant Information

CHAPTER 4 THE PRIVILEGE AGAINSTSELF-INCRIMINATION

I. INTRODUCTION§ 4:1 The privilege de�ned§ 4:2 Incrimination de�ned§ 4:3 Exposure under the criminal laws of jurisdictions other

than the one in which the privilege is claimed§ 4:4 Exposure to noncriminal sanctions

II. WHO MAY CLAIM THE PRIVILEGE§ 4:5 Personal character of the privilege§ 4:6 Corporations, partnerships, and other collective entities§ 4:7 Sole proprietorships§ 4:8 Agents and independent contractors§ 4:9 The special status of public employees

III. PROCEEDINGS IN WHICH THEPRIVILEGE MAY BE CLAIMED

§ 4:10 Introduction


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§ 4:11 Criminal proceedings§ 4:12 Probation revocation hearings§ 4:13 Civil cases§ 4:14 Legislative proceedings§ 4:15 Administrative proceedings§ 4:16 Juvenile proceedings§ 4:17 Internal revenue forms and proceedings§ 4:18 Registration and other self-reporting requirements§ 4:19 Prison context

IV. SCOPE OF INFORMATION WITHIN THEPRIVILEGE

§ 4:20 Testimonial communications and evidence§ 4:21 Oral testimony§ 4:22 Books, records, and other documents§ 4:23 Business records§ 4:24 Private records§ 4:25 Noncommunicative acts§ 4:26 Physical examinations and exemplars§ 4:27 Mental examinations

V. THE MEANING OF COMPULSION§ 4:28 Introduction§ 4:29 De�ning custodial interrogation and applying Miranda§ 4:30 Prison context§ 4:31 Statutes and compulsion§ 4:32 Searches and seizures§ 4:33 Determining the voluntariness of confessions and other

statements

VI. MECHANICS OF CLAIMING ANDENFORCING THE PRIVILEGE

§ 4:34 Informing the witness of his or her rights§ 4:35 Su�ciency and timing of witness's claim of privilege§ 4:36 Determination of privilege by the court§ 4:37 Contempt§ 4:38 Appeals of rulings on the privilege§ 4:39 The issue of the jury's presence§ 4:40 Inferences drawn by the jury from a decision not to

testify§ 4:41 Jury instructions re�ecting on defendant's silence§ 4:42 Comments by counsel referring to defendant's silence§ 4:43 Comments by prosecutor§ 4:44 Statements that the prosecution's evidence was

uncontroverted

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§ 4:45 References to past assertion of the privilege§ 4:46 Comments by counsel for a codefendant§ 4:47 Comments on exemplars§ 4:48 References to the invocation of privilege for impeachment

purposes

VII. WAIVER AND ABROGATION OF THEPRIVILEGE

§ 4:49 Introduction§ 4:50 Oral testimony§ 4:51 Preparation or submission of documents§ 4:52 E�ect of testimonial waiver in subsequent proceedings§ 4:53 Guilty pleas and convictions§ 4:54 Immunity§ 4:55 Adequacy of immunity§ 4:56 The power to grant immunity§ 4:57 Right of defendant to object to the granting of immunity

or to compel immunization§ 4:58 Immunized testimony in subsequent proceedings

CHAPTER 5 SPOUSAL PRIVILEGES§ 5:1 Introduction

I. TESTIMONIAL IMMUNITY§ 5:2 Overview§ 5:3 The required marital relationship§ 5:4 Persons who may claim immunity§ 5:5 Waiver of the immunity§ 5:6 Exceptions to the doctrine

II. MARITAL COMMUNICATIONS PRIVILEGE§ 5:7 Source of the law and rationale for the privilege§ 5:8 Nature of relationships subject to the privilege§ 5:9 Who may assert the privilege?§ 5:10 What is a communication?§ 5:11 Requirement of con�dentiality§ 5:12 Waiver§ 5:13 Exceptions to the privilege§ 5:14 Parent-child privilege

Spousal Privilege—State By State

CHAPTER 6 THE CLERGYCOMMUNICATIONS PRIVILEGE

I. INTRODUCTION§ 6:1 Rationale for the privilege


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§ 6:2 The privilege de�ned§ 6:3 The privilege in state courts§ 6:4 The privilege in federal courts: Federal Rule of Evidence

501 and Proposed Rule 506

II. WHO IS A MEMBER OF THE CLERGY?§ 6:5 In general§ 6:6 Members of particular denominations; Lay o�cials

III. WHO IS A PENITENT AND WHO MAYASSERT THE PRIVILEGE

§ 6:7 Who is a penitent?§ 6:8 Who may assert the privilege?; Waiver of the privilege

IV. WHAT TYPES OF COMMUNICATIONS AREPROTECTED AND WHAT IS THE SCOPEOF THE PROTECTED RELATIONSHIP?

§ 6:9 In general§ 6:10 Requirement that the communication be part of

discipline enjoined by church§ 6:11 Requirement that the communication be made to a

minister in professional character; Applicability tocounseling activity by minister

§ 6:12 Requirement that the communication be penitential orconfessional in nature

§ 6:13 Requirement of con�dentiality, presence of third parties§ 6:14 Emerging issues: The clergy communications privilege

and mandatory reporting statutes

CHAPTER 7 THE PHYSICIAN-PATIENT,PSYCHOTHERAPIST-PATIENT, ANDRELATED PRIVILEGES

I. INTRODUCTION§ 7:1 General de�nitions and sources of the law§ 7:2 Rationales for the privilege

II. WHAT KINDS OF PROVIDERS ARECOVERED?

§ 7:3 Physicians§ 7:4 Psychotherapists§ 7:5 Social workers and other professional counselors§ 7:6 Others in the health �eld§ 7:7 Recipients of improper disclosures

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III. WHO IS A PATIENT?§ 7:8 Information from family members or others§ 7:9 Assertion of the privilege by persons other than the

patient

IV. WHAT MATTERS ARE PROTECTED?§ 7:10 Communications from the patient§ 7:11 Other information gained in examinations or treatment§ 7:12 Information unrelated to the care sought§ 7:13 Conclusions, diagnoses, and treatments§ 7:14 Medical records§ 7:15 Information that does not a�ect the patient's reputation

V. WHEN IS A CONSULTATION MEDICAL?§ 7:16 Consultations for purposes other than treatment§ 7:17 Conversations in a nonprofessional capacity

VI. REQUIREMENT OF CONFIDENTIALITY§ 7:18 Presence of third parties§ 7:19 Relevance of subsequent disclosures

VII. WAIVERS AND EXCEPTIONS§ 7:20 Who may waive the privilege?§ 7:21 Express waivers§ 7:22 Implied waivers§ 7:23 Placing medical condition at issue§ 7:24 Criminal proceedings§ 7:25 Commitment proceedings§ 7:26 Will contests§ 7:27 Required reports§ 7:28 Child custody disputes§ 7:29 ‘‘Dangerous patient’’ exception

VIII. MECHANICS OF ASSERTING THEPRIVILEGE

§ 7:30 Where patient or client is a party§ 7:31 Where patient or client is not a party

IX. THE RELATIONSHIP OF PRIVILEGE ANDCONFIDENTIALITY

§ 7:32 State laws governing con�dentiality§ 7:33 The HIPAA privacy regulations§ 7:34 Access to one's own medical records


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Volume 2

CHAPTER 8 THE JOURNALIST'SPRIVILEGE

I. INTRODUCTION

§ 8:1 The journalist's privilege: An overview

II. HISTORY AND DEVELOPMENT OFPROTECTION FOR JOURNALISTS'INFORMATION

§ 8:2 Historical antecedents§ 8:3 Garland v. Torre and the birth of the First Amendment

privilege§ 8:4 Branzburg v. Hayes : The Supreme Court limits the

privilege§ 8:5 Post- Branzburg development of the constitutional

privilege§ 8:6 State shield laws§ 8:7 Department of justice guidelines§ 8:8 Who may assert the privilege§ 8:9 Con�dential sources and o�-the-record information§ 8:10 Other unpublished information and work product§ 8:11 Information published or disclosed to third parties

III. OVERCOMING THE FIRST AMENDMENTPRIVILEGE: THE THREE-PART TEST

§ 8:12 Introduction§ 8:13 Relevance to the underlying proceeding§ 8:14 Unavailability from alternative sources§ 8:15 Compelling need

IV. THE FIRST AMENDMENT PRIVILEGE INDIFFERENT SETTINGS

§ 8:16 Grand jury investigations§ 8:17 Criminal trials§ 8:18 Civil proceedings: Third-party testimony§ 8:19 Civil proceedings: The journalist as a party§ 8:20 Invoking the privilege§ 8:21 In camera review and related procedures§ 8:22 Obtaining review: Appeal and contempt

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CHAPTER 9 EXECUTIVE ANDGOVERNMENTAL PRIVILEGES

I. INTRODUCTION§ 9:1 Summary of privileges and quasi privileges§ 9:2 Role of Freedom of Information Act

II. CONSTITUTIONAL EXECUTIVE PRIVILEGE§ 9:3 In general§ 9:4 Scope of the privilege§ 9:5 Overcoming the privilege§ 9:6 Relation to executive immunity

III. JUDICIAL PRIVILEGE§ 9:7 Judicial privilege

IV. THE DELIBERATIVE PROCESS PRIVILEGE§ 9:8 Deliberative process exemption to FOIA§ 9:9 Elements of the privilege§ 9:10 Limitations on the privilege§ 9:11 Waiving the privilege§ 9:12 Invoking the privilege§ 9:13 Extensions of the privilege

V. PRIVILEGE FOR MILITARY, DIPLOMATIC,AND STATE SECRETS

§ 9:14 State secrets privilege generally§ 9:15 Application of the common law privilege§ 9:16 Privilege for classi�ed information in criminal

proceedings§ 9:17 Application of the Freedom of Information Act to state

secrets

VI. PRIVILEGES FOR INFORMATIONRELATING TO LAW ENFORCEMENT

§ 9:18 Privilege for information obtained for law enforcementpurposes

§ 9:19 Grand jury material§ 9:20 Informer's privilege§ 9:21 —Criminal proceedings§ 9:22 —Pretrial proceedings§ 9:23 —Prison disciplinary proceedings§ 9:24 —Civil enforcement proceedings


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§ 9:25 —Freedom of Information Act Exemption 7(D)§ 9:26 —Proposed Federal Rule of Evidence 510; Uniform Rule

509§ 9:27 Novel investigative techniques§ 9:28 Required reports privilege§ 9:29 Trade secrets and con�dential business information

submitted to government§ 9:30 Bank examination privilege§ 9:31 Reverse FOIA actions§ 9:32 Privacy privilege§ 9:33 Tax return information§ 9:34 —Return information§ 9:35 —§ 6103 exceptions§ 9:36 Freedom of Information Act Exemption 3

CHAPTER 10 SETTLEMENTNEGOTIATIONS PRIVILEGE

I. INTRODUCTION§ 10:1 The privilege de�ned

II. VIABILITY OF THE PRIVILEGE§ 10:2 Courts recognizing the settlement negotiations privilege§ 10:3 Courts rejecting the settlement negotiations privilege;

burden on requesting party to justify discovery

Table of Laws and Rules

Table of Cases

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§ 1:77 Selective waiverResearch ReferencesWest's Key Number Digest, Witnesses ”219(3)

When a party voluntarily discloses documents or com-munications to a government agency,1 the documents andcommunications may lose the protection of the privilege andbe subject to discovery by other parties, including privatelitigants.2 Corporations have argued that these voluntarydisclosures to government agencies amount to a selectivewaiver of the privilege solely for the bene�t of the publicagency's review, and should not be considered as a waiverfor purposes of private civil litigation. Only a small minorityof courts have adopted this concept of selective waiver.3

The clear trend, and the majority rule under federal law,

[Section 1:77]1There is increasing pressure on companies to disclose internal

investigatory materials to government agencies in order to avoid prosecu-tion, or at least to obtain leniency in the event of criminal conviction. Forexample, amendments to the Federal Sentencing Guidelines that becamee�ective on November 1, 2004 reduce an organization's ‘‘culpability score’’if, among other factors, the organization ‘‘fully cooperated in the investiga-tion’’ of its wrongdoing. See United States Sent. Guidelines § 8C2.5(g)(1).Application Note 12 to Section 8C2.5. The Guidelines provide the follow-ing guidance regarding when ‘‘cooperation’’ may require waiver of theattorney-client privilege:

waiver of attorney-client privilege and of work product protections is not a pre-requisite to a reduction in culpability score under subdivisions (1) and (2) ofsubsection (g) unless such waiver is necessary in order to provide timely andthorough disclosure of all pertinent information known to the organization.

2See D. Greenwald and M. Thomas, Selective Waiver of Privileges, ForThe Defense, December 2002.

3See, e.g., Diversi�ed Industries, Inc. v. Meredith, 572 F.2d 596, 1977-2Trade Cas. (CCH) P 61591, 1978-1 Trade Cas. (CCH) P 61879, 23 Fed. R.Serv. 2d 1473, 24 Fed. R. Serv. 2d 1201 (8th Cir. 1977) (rejected by, Re-public of Philippines v. Westinghouse Elec. Corp., 132 F.R.D. 384, 17 Fed.R. Serv. 3d 1476 (D.N.J. 1990)) and (disapproved of by, U.S. v. Mas-sachusetts Institute of Technology, 957 F. Supp. 301, 97-1 U.S. Tax Cas.(CCH) P 50269, 37 Fed. R. Serv. 3d 711, 79 A.F.T.R.2d 97-595 (D. Mass.1997)) and (rejected by, In re Columbia/HCA Healthcare Corp. BillingPractices Litigation, 293 F.3d 289, 58 Fed. R. Evid. Serv. 1451, 53 Fed. R.Serv. 3d 789, 2002 FED App. 0201P (6th Cir. 2002)). See also In re M & LBusiness Mach. Co., Inc., 161 B.R. 689 (D. Colo. 1993) (rejected by, In reColumbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d289, 58 Fed. R. Evid. Serv. 1451, 53 Fed. R. Serv. 3d 789, 2002 FED App.0201P (6th Cir. 2002)) (more likely to �nd waiver when the holderselectively discloses to the government, then later tries to reassert theprivilege against the government or a grand jury rather than against aprivate litigant).

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is that waiver as to even one government agency constituteswaiver as to all, including other government agencies andprivate litigation adversaries. The seminal case on selectivewaiver is Diversi�ed Industries, Inc. v. Meredith.4 In Diversi-�ed, a corporation responded to allegations that it had paidbribes to obtain business by forming an independent auditcommittee and retaining outside counsel to prepare aninternal report on the issue. The internal report wassubsequently produced to the SEC. The Eighth Circuit heldthat this disclosure constituted only a ‘‘limited waiver’’ whichdid not preclude the corporation from withholding the reportfrom private litigants on the grounds of attorney-clientprivilege.5 The Eighth Circuit explained: ‘‘To hold otherwisemay have the e�ect of thwarting the developing procedure ofcorporations to employ independent outside counsel toinvestigate and advise them in order to protect stockholders,potential stockholders and customers.’’6

Most courts have rejected or at least applied a narrow

4Diversi�ed Industries, Inc. v. Meredith, 572 F.2d 596, 1977-2 TradeCas. (CCH) P 61591, 1978-1 Trade Cas. (CCH) P 61879, 23 Fed. R. Serv.2d 1473, 24 Fed. R. Serv. 2d 1201 (8th Cir. 1977) (rejected by, Republic ofPhilippines v. Westinghouse Elec. Corp., 132 F.R.D. 384, 17 Fed. R. Serv.3d 1476 (D.N.J. 1990)) and (disapproved of by, U.S. v. MassachusettsInstitute of Technology, 957 F. Supp. 301, 97-1 U.S. Tax Cas. (CCH) P50269, 37 Fed. R. Serv. 3d 711, 79 A.F.T.R.2d 97-595 (D. Mass. 1997)) and(rejected by, In re Columbia/HCA Healthcare Corp. Billing Practices Liti-gation, 293 F.3d 289, 58 Fed. R. Evid. Serv. 1451, 53 Fed. R. Serv. 3d 789,2002 FED App. 0201P (6th Cir. 2002)).

5Diversi�ed Industries, Inc. v. Meredith, 572 F.2d 596, 611, 1977-2Trade Cas. (CCH) P 61591, 1978-1 Trade Cas. (CCH) P 61879, 23 Fed. R.Serv. 2d 1473, 24 Fed. R. Serv. 2d 1201 (8th Cir. 1977) (rejected by, Re-public of Philippines v. Westinghouse Elec. Corp., 132 F.R.D. 384, 17 Fed.R. Serv. 3d 1476 (D.N.J. 1990)) and (disapproved of by, U.S. v. Mas-sachusetts Institute of Technology, 957 F. Supp. 301, 97-1 U.S. Tax Cas.(CCH) P 50269, 37 Fed. R. Serv. 3d 711, 79 A.F.T.R.2d 97-595 (D. Mass.1997)) and (rejected by, In re Columbia/HCA Healthcare Corp. BillingPractices Litigation, 293 F.3d 289, 58 Fed. R. Evid. Serv. 1451, 53 Fed. R.Serv. 3d 789, 2002 FED App. 0201P (6th Cir. 2002)).

6Diversi�ed Industries, Inc. v. Meredith, 572 F.2d 596, 611, 1977-2Trade Cas. (CCH) P 61591, 1978-1 Trade Cas. (CCH) P 61879, 23 Fed. R.Serv. 2d 1473, 24 Fed. R. Serv. 2d 1201 (8th Cir. 1977) (rejected by, Re-public of Philippines v. Westinghouse Elec. Corp., 132 F.R.D. 384, 17 Fed.R. Serv. 3d 1476 (D.N.J. 1990)) and (disapproved of by, U.S. v. Mas-sachusetts Institute of Technology, 957 F. Supp. 301, 97-1 U.S. Tax Cas.(CCH) P 50269, 37 Fed. R. Serv. 3d 711, 79 A.F.T.R.2d 97-595 (D. Mass.1997)) and (rejected by, In re Columbia/HCA Healthcare Corp. BillingPractices Litigation, 293 F.3d 289, 58 Fed. R. Evid. Serv. 1451, 53 Fed. R.Serv. 3d 789, 2002 FED App. 0201P (6th Cir. 2002)). See also U.S. v.Shyres, 898 F.2d 647, 657 (8th Cir. 1990) (applying the reasoning ofDiversi�ed); U.S. v. Buco, 1991 WL 82459 (D. Mass. 1991) (disclosure toO�ce of Thrift Supervision did not waive privilege for internal investiga-

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construction of the selective waiver doctrine, and have heldthat selective disclosure of a document to the governmentconstitutes complete waiver of the privilege. As the D.C.Circuit observed in one of the early selective waiver cases,the privilege was not designed to allow a client ‘‘to pick andchoose among his opponents, waiving the privilege for someand resurrecting the claim of con�dentiality to obstructothers.’’7

Since the D.C. Circuit �rst rejected selective waiver, theFirst, Second, Third, Fourth and Sixth Circuits have rejectedthe selective waiver doctrine to varying degrees. In Westing-house Elec. Corp. v. Republic of Philippines,8 the ThirdCircuit held that disclosure to the government waived privi-leges, even when the disclosing party had entered into acon�dentiality agreement with the government agencyreceiving the privileged materials. In that case, the SEC andthe DOJ had investigated allegations that Westinghouse hadobtained a contract to build a nuclear power plant in thePhilippines by bribing foreign o�cials. After entering into a

tion of banking violations); Schnell v. Schnall, 550 F. Supp. 650, 652–53,Fed. Sec. L. Rep. (CCH) P 98871, 12 Fed. R. Evid. Serv. 97, 35 Fed. R.Serv. 2d 885 (S.D. N.Y. 1982) (rejected by, Manufacturers and TradersTrust Co. v. Servotronics, Inc., 132 A.D.2d 392, 522 N.Y.S.2d 999 (4thDep't 1987)) and (rejected by, In re Columbia/HCA Healthcare Corp. Bill-ing Practices Litigation, 293 F.3d 289, 58 Fed. R. Evid. Serv. 1451, 53Fed. R. Serv. 3d 789, 2002 FED App. 0201P (6th Cir. 2002)) (public policyof encouraging disclosure to SEC compels �nding of selective waiver).

7Permian Corp. v. U.S., 665 F.2d 1214, 1219, 1220, Fed. Sec. L. Rep.(CCH) P 98280, 8 Fed. R. Evid. Serv. 1424, 32 Fed. R. Serv. 2d 429 (D.C.Cir. 1981). Occidental Petroleum produced a large number of documentsto Mead under a stipulation that inadvertent production would not waivethe attorney-client privilege. Occidental allowed the SEC access to thesedocuments for an on-going SEC investigation under an agreement thatprohibited certain further disclosures by the SEC. The Department ofEnergy then sought the disclosed documents from the SEC. The District ofColumbia Circuit found that the disclosure of the documents to the SECresulted in waiver. Permian Corp. v. U.S., 665 F.2d 1214, 1222, Fed. Sec.L. Rep. (CCH) P 98280, 8 Fed. R. Evid. Serv. 1424, 32 Fed. R. Serv. 2d429 (D.C. Cir. 1981). The court refused to �nd that the public policy toencourage cooperation with the SEC overrode the requirements of theprivilege. Permian Corp. v. U.S., 665 F.2d 1214, 1220–1222, Fed. Sec. L.Rep. (CCH) P 98280, 8 Fed. R. Evid. Serv. 1424, 32 Fed. R. Serv. 2d 429(D.C. Cir. 1981). It concluded that any privilege had been waived, stating‘‘the attorney-client privilege should be available only at the traditionalprice: a litigant who wishes to assert con�dentiality must maintain genu-ine con�dentiality.’’ Permian Corp. v. U.S., 665 F.2d 1214, 1222, Fed. Sec.L. Rep. (CCH) P 98280, 8 Fed. R. Evid. Serv. 1424, 32 Fed. R. Serv. 2d429 (D.C. Cir. 1981).

8Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414,35 Fed. R. Evid. Serv. 1070, 22 Fed. R. Serv. 3d 377 (3d Cir. 1991).


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con�dentiality agreement with the DOJ, and in reliance onSEC regulations stating that materials furnished during aninvestigation were non-public and con�dential, Westinghouseprovided internal investigation reports to the agencies.Almost a decade after the con�dentiality agreement, thePhilippines brought suit against Westinghouse and soughtthe reports Westinghouse had disclosed to the government.The Third Circuit held that, by disclosing the reports to thegovernment years earlier, Westinghouse had waived its priv-ilege as to all litigation adversaries, despite the terms of thecon�dentiality agreement and SEC regulations. The courtreasoned that the protection of the attorney-client privilegewas not required to encourage corporations to make suchdisclosures to a government agency since the corporationwould most likely share any exculpating documents with thegovernment willingly, privileged or not, in order to obtainlenient treatment.

In U.S. v. Massachusetts Institute of Technology,9 the FirstCircuit refused to adopt the selective waiver doctrine. Thecourt held that MIT fully waived the privilege with respectto documents it disclosed to a government audit agency (theDCAA) pursuant to the terms of a contract that it had withthe government. Neither the government's interest in obtain-ing privileged information, nor MIT's interest in supportingits relationship with the government, justi�ed preservingthe attorney-client privilege. The court noted: ‘‘But the gen-eral principle that disclosure normally negates the privilegeis worth maintaining. To maintain it here makes the lawmore predictable and certainly eases its administration.’’10Acknowledging the di�culty created by government de-mands, the court stated: ‘‘ . . . MIT chose to place itself inthis position by becoming a government contractor.’’11

Although the rule allowing selective waiver per se, as an-

9U.S. v. Massachusetts Institute of Technology, 129 F.3d 681, 97-2U.S. Tax Cas. (CCH) P 50955, 48 Fed. R. Evid. Serv. 66, 39 Fed. R. Serv.3d 4, 80 A.F.T.R.2d 97-7981 (1st Cir. 1997).

10U.S. v. Massachusetts Institute of Technology, 129 F.3d 681, 685,97-2 U.S. Tax Cas. (CCH) P 50955, 48 Fed. R. Evid. Serv. 66, 39 Fed. R.Serv. 3d 4, 80 A.F.T.R.2d 97-7981 (1st Cir. 1997).

11U.S. v. Massachusetts Institute of Technology, 129 F.3d 681, 686,97-2 U.S. Tax Cas. (CCH) P 50955, 48 Fed. R. Evid. Serv. 66, 39 Fed. R.Serv. 3d 4, 80 A.F.T.R.2d 97-7981 (1st Cir. 1997). See also In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 294–310, 58 Fed. R. Evid. Serv. 1451, 53 Fed. R. Serv. 3d 789, 2002 FED App.0201P (6th Cir. 2002), cert. dismissed, 539 U.S. 977, 124 S. Ct. 27, 156 L.Ed. 2d 690 (2003) (noting inconsistent application of selective waiver andfollowing Westinghouse in rejecting selective waiver in favor of a ‘‘brightline’’ rule that disclosure waives the privilege); In re Steinhardt Partners,


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L.P., 9 F.3d 230, 236, Fed. Sec. L. Rep. (CCH) P 97818, 27 Fed. R. Serv.3d 726 (2d Cir. 1993) (rejected by, In re Columbia/HCA Healthcare Corp.Billing Practices Litigation, 293 F.3d 289, 58 Fed. R. Evid. Serv. 1451, 53Fed. R. Serv. 3d 789, 2002 FED App. 0201P (6th Cir. 2002)) (court refusedto acknowledge selective waiver in the case before it, but expresslydeclined to adopt a per se rule against selective waiver, leaving the dooropen where the parties enter into a con�dentiality order); In re MartinMarietta Corp., 856 F.2d 619, 623 (4th Cir. 1988) (waiver where partyconducted an internal investigation into alleged fraudulent accountingprocedures and disclosed the results to the government to avoid indict-ment; resulting waiver extended to non-disclosed materials, and even toundisclosed details underlying the published data, however, there wasonly a partial waiver for opinion work-product); In re Subpoenas DucesTecum, 738 F.2d 1367, 1370, Fed. Sec. L. Rep. (CCH) P 91566, 16 Fed. R.Evid. Serv. 165, 39 Fed. R. Serv. 2d 611 (D.C. Cir. 1984) (relying onPermian, the court found that a party waived the privilege by disclosinginformation to the SEC, despite the fact that the party's transmittal letterstated that the documents were con�dential and their submission to theSEC was not a waiver of any privilege); In re Sealed Case, 676 F.2d 793,824, Fed. Sec. L. Rep. (CCH) P 98647, 82-1 U.S. Tax Cas. (CCH) P 9335,10 Fed. R. Evid. Serv. 490, 33 Fed. R. Serv. 2d 1778, 50 A.F.T.R.2d 82-5637 (D.C. Cir. 1982) (company waived privilege by voluntarily submittingreport of investigative counsel to the SEC; waiver included any documen-tation necessary to evaluate the report); In re Tyco Intern., Inc. Multidis-trict Litigation (MDL 1335), 2004 DNH 53, 2004 WL 556715 (D.N.H.2004) (disclosure of otherwise privileged material to the SEC and the NewYork District Attorney waived the privilege as to third-party privatelitigants, despite party's cover letters that stated it did not intend towaive its privileges, and an a�davit from an assistant district attorneywho conceded he had agreed that disclosures would not constitute waiver);In re Lupron Marketing and Sales Practices Litigation, 2004 WL 764454(D. Mass. 2004), subsequent determination, 2004 WL 1058108 (D. Mass.2004) (disclosure of otherwise privileged material to DOJ waived privi-leges as to third party litigants, notwithstanding government's agreementto treat the materials with the con�dentiality accorded to documentsproduced to a grand jury under Fed. R. Crim. P. 6(e)); U.S. v. Bergonzi,216 F.R.D. 487 (N.D. Cal. 2003) (disclosure of investigative materials toSEC and US Attorney's O�ce waived privilege, despite agencies' agree-ment to keep the materials con�dential; attorney-client privilege did notapply because the investigation was never intended to be con�dential inlight of company's advance agreement to disclose materials to the agen-cies); Information Resources, Inc. v. Dun & Bradstreet Corp., 999 F. Supp.591, 593 (S.D. N.Y. 1998) (voluntary disclosure of privileged informationto government agency in order to ‘‘incite it to attack the informant's ad-versary’’ waives privilege); Maryville Academy v. Loeb Rhoades & Co.,Inc., 559 F. Supp. 7, 9, 12 Fed. R. Evid. Serv. 1324, 36 Fed. R. Serv. 2d 81(N.D. Ill. 1982) (court rejected concept of selective waiver and found party'sdisclosure to the government constituted full waiver of the privilege). Butsee McDonnell Douglas Corp. v. U.S. E.E.O.C., 922 F. Supp. 235, 70 FairEmpl. Prac. Cas. (BNA) 980 (E.D. Mo. 1996) (disclosure of attorney-clientprivileged information to EEOC did not waive the privilege with respectto third parties; EEOC and producing party had agreed that production ofprivileged information to EEOC would not constitute waiver); S.E.C. v.Amster & Co., 126 F.R.D. 28, 30, Fed. Sec. L. Rep. (CCH) P 94480, 14 Fed.


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nounced by the Eighth Circuit, is largely out of favor, thereremains some debate over whether disclosure to the govern-ment waives privileges when the disclosing party has enteredinto a con�dentiality agreement with the government. InWestinghouse, the Third Circuit held that disclosure to thegovernment waived privileges, even when the disclosingparty had entered into a con�dentiality agreement with thegovernment agency receiving the privileged materials.12 TheSecond Circuit took a softer position in Steinhardt Partners.The court stated:

[W]e decline to adopt a per se rule that voluntary disclosuresto the government waive work-product protection . . .Establishing a rigid rule would fail to anticipate situations inwhich the disclosing party and the government . . . haveentered into an explicit agreement that the [governmentagency] will maintain the con�dentiality of the disclosedmaterials.13

In U.S. v. Massachusetts Institute of Technology,14 the par-ties had not entered into a con�dentiality agreement, butthe court disposed of the selective waiver doctrine with sucha broad stroke, it seems that the existence of a con�dential-ity agreement would have made little di�erence.

The Sixth Circuit struck the most decisive blow yet to theselective waiver doctrine with its holding in In re Columbia/HCA Healthcare Corp. Billing Practices Litigation,15 In thatcase, Columbia/HCA refused to disclose its internal audit

R. Serv. 3d 138 (S.D. N.Y. 1989) (recognizing selective waiver if the partyholding the privilege and the government have entered into a bindingagreement protecting the privilege); Saito v. McKesson HBOC, Inc., 2002WL 31657622 (Del. Ch. 2002) (applying selective waiver doctrine based inpart on Delaware's strong preference not to �nd waiver of privilege).

12Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414,1426, 35 Fed. R. Evid. Serv. 1070, 22 Fed. R. Serv. 3d 377 (3d Cir. 1991).

13In re Steinhardt Partners, L.P., 9 F.3d 230, 236, Fed. Sec. L. Rep.(CCH) P 97818, 27 Fed. R. Serv. 3d 726 (2d Cir. 1993) (rejected by, In reColumbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d289, 58 Fed. R. Evid. Serv. 1451, 53 Fed. R. Serv. 3d 789, 2002 FED App.0201P (6th Cir. 2002)). See Maruzen Co., Ltd. v. HSBC USA, Inc., 2002WL 1628782 (S.D. N.Y. 2002) (following In re Steinhardt and �nding nowaiver of attorney-client privilege where parties entered into a con�denti-ality agreement before internal investigation materials were disclosed toU.S. Attorney's o�ce).

14U.S. v. Massachusetts Institute of Technology, 129 F.3d 681, 97-2U.S. Tax Cas. (CCH) P 50955, 48 Fed. R. Evid. Serv. 66, 39 Fed. R. Serv.3d 4, 80 A.F.T.R.2d 97-7981 (1st Cir. 1997).

15In re Columbia/HCA Healthcare Corp. Billing Practices Litigation,293 F.3d 289, 58 Fed. R. Evid. Serv. 1451, 53 Fed. R. Serv. 3d 789, 2002FED App. 0201P (6th Cir. 2002), cert. dismissed, 539 U.S. 977, 124 S. Ct.27, 156 L. Ed. 2d 690 (2003).


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materials to the Department of Justice, and ultimately didso only after entering into a con�dentiality agreement withthe government that stated: ‘‘[t]he disclosure of any report,document, or information by one party to the other does notconstitute a waiver of any applicable privilege or claim underthe work-product doctrine.’’16 Despite the agreement, thecourt rejected ‘‘the concept of selective waiver, in any of itsvarious forms,’’ and a�rmed an order compelling the releaseof the audits to private litigants.17 Some courts, however,have left the door open to the selective waiver doctrine wherethe parties entered into a con�dentiality agreement with thegovernment.18

X. EXTENSIONS OF THE PRIVILEGE BASED ONCOMMON INTEREST

§ 1:78 In general

Ordinarily the presence of third parties at a professionallegal consultation, or the later disclosure to third persons ofcommunications made as part of a legal relationship, will de-stroy the con�dentiality that is essential to a valid assertionof the attorney-client privilege. Courts have, however,recognized several extensions of the attorney-client privilegewhich allow clients and lawyers with common interests to

16In re Columbia/HCA Healthcare Corp. Billing Practices Litigation,293 F.3d 289, 292, 58 Fed. R. Evid. Serv. 1451, 53 Fed. R. Serv. 3d 789,2002 FED App. 0201P (6th Cir. 2002), cert. dismissed, 539 U.S. 977, 124S. Ct. 27, 156 L. Ed. 2d 690 (2003) (emphasis added).

17In re Columbia/HCA Healthcare Corp. Billing Practices Litigation,293 F.3d 289, 302, 58 Fed. R. Evid. Serv. 1451, 53 Fed. R. Serv. 3d 789,2002 FED App. 0201P (6th Cir. 2002), cert. dismissed, 539 U.S. 977, 124S. Ct. 27, 156 L. Ed. 2d 690 (2003). See also U.S. v. Bergonzi, 214 F.R.D.563 (N.D. Cal. 2003), opinion amended and superseded, 216 F.R.D. 487(N.D. Cal. 2003) (rejecting selective waiver doctrine despite con�dentialityagreement with the government). But see Saito v. McKesson HBOC, Inc.,2002 WL 31657622 (Del. Ch. 2002) (citing Delaware's general reluctanceto �nd waiver of privileges, the court upheld a form of selective waiver,compelling production of documents disclosed to the government prior toexecution of a con�dentiality agreement, and protecting documentsdisclosed after the con�dentiality order was in place).

18See, e.g., In re Columbia/HCA Healthcare Corp. Billing Practices Liti-gation, 293 F.3d 289, 308, 58 Fed. R. Evid. Serv. 1451, 53 Fed. R. Serv. 3d789, 2002 FED App. 0201P (6th Cir. 2002), cert. dismissed, 539 U.S. 977,124 S. Ct. 27, 156 L. Ed. 2d 690 (2003) (J. Boggs dissenting) (‘‘the circuitcourts of appeal are deeply split on whether a disclosure of privileged in-formation to the government, in the course of an investigation and with acon�dentiality agreement, waives the privilege as to all other parties.’’).


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privilege; hence a client's records delivered by the client's ac-countant to a second accountant retained by the taxpayer'sattorney would not be protected.9 Where a joint defense isundertaken by parties and their lawyers, the protection canin proper cases extend to communications which pass fromone party to the accountant hired on behalf of both parties.10A party, however, cannot resurrect the privilege by addinganother party, and that party's accountant to the mix. Thisis true even if they share a common interest. The commoninterest rule presumes a valid underlying privilege. Onecannot create a privilege, where previously there was none,simply by introducing a third party (with or without a com-mon interest) into the circle within which documents areshared.11

§ 3:5 Risk of waiver of attorney-client privilege andwork product protection through disclosure toauditors

In response to recent corporate accounting scandals, thelong-standing role of the independent auditor as a ‘‘publicwatchdog’’ with responsibilities to creditors, stockholders,and the investing public, has taken on heightenedsigni�cance.1 In order to comply with SEC regulations andgenerally accepted accounting standards, auditors request awide variety of information in the course of their annualaudits. Among other things, auditors may request informa-

and Co. Partnership, 89-1 U.S. Tax Cas. (CCH) P 9163, 63 A.F.T.R.2d 89-650, 1989 WL 47285 (W.D. Pa. 1989), at *2 (attorney-client privilege doesnot prevent subpoena of amended tax returns, even if the accountantprepares the returns at the taxpayer's attorney's request; preparation of atax return usually does not require legal advice).

9U.S. v. Clark, 847 F.2d 1467, 1470, 88-1 U.S. Tax Cas. (CCH) P 9369,25 Fed. R. Evid. Serv. 1391, 61 A.F.T.R.2d 88-1313 (10th Cir. 1988).

10U.S. v. Schwimmer, 892 F.2d 237, 244, 29 Fed. R. Evid. Serv. 434 (2dCir. 1989).

11Cavallaro v. U.S., 284 F.3d 236, 2002-1 U.S. Tax Cas. (CCH) P 50330,52 Fed. R. Serv. 3d 761, 89 A.F.T.R.2d 2002-1699 (1st Cir. 2002)

[Section 3:5]1See In re Raytheon Securities Litigation, 218 F.R.D. 354, 360 (D.

Mass. 2003), citing U.S. v. Arthur Young & Co., 465 U.S. 805, 817, 818,104 S. Ct. 1495, 79 L. Ed. 2d 826, Fed. Sec. L. Rep. (CCH) P 99721, 84-1U.S. Tax Cas. (CCH) P 9305, 15 Fed. R. Evid. Serv. 15, 53 A.F.T.R.2d 84-866 (1984); Medinol, Ltd. v. Boston Scienti�c Corp., 214 F.R.D. 113, 116(S.D. N.Y. 2002) (‘‘And, as has become crystal clear in the face of themany accounting scandals that have arisen as of late, in order for auditorsto properly do their job, they must not share common interests with thecompany they audit. ‘[G]ood auditing requires adversarial tension be-tween the auditor and the client.'’’) (citation omitted).

§ 3:5The Accountant—Client Privilege

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tion from counsel regarding loss contingencies2 (‘‘audit let-ters’’) and may request access to board minutes, casereserves, and other sensitive information, much of whichmay be protected by the attorney-client privilege and/or thework product doctrine.

Because generally accepted accounting standards3 require�nancial statements to accrue or disclose loss contingencies,auditors require their clients to provide them with informa-tion regarding pending or threatened litigation and actual orpossible claims and assessments. Auditors typically requestthat clients ask counsel to provide them with informationregarding litigation, claims, and assessments involving theclient. In some cases, auditors may be unwilling and/or un-able to issue unquali�ed audit opinions unless they reviewthese types of information.4

Clients and their attorneys are faced with a seriousdilemma in attempting to respond to auditors' requests forinformation. On the one hand, failure to disclose materialloss contingencies may expose clients and their attorneys toliability for misrepresentation.5 On the other hand, disclo-sures may waive both the attorney-client privilege and work-product protection over materials disclosed, while at thesame time giving notice to those possessing potential claimsagainst the corporation; in e�ect, advertising for lawsuitsthat might otherwise not be �led.6

The American Bar Association (ABA) and the AmericanInstitute of Certi�ed Public Accountants (AICPA) have at-tempted through separate statements of policy to reach an

2Loss contingency is de�ned as ‘‘an existing condition, situation or setof circumstances involving uncertainty as to possible . . . loss . . . to anenterprise that will ultimately be resolved when one or more future eventsoccur or fail to occur.’’ American Institute of Certi�ed Public Accounts,Statement of Financial Accounting Standards No. 5, Accounting forContingencies (Mar 1975), reprinted at 31 Bus. Law 1727 (1976).

3American Institute of Certi�ed Public Accounts, Statement ofFinancial Accounting Standards No 5, Accounting for Contingencies (Mar1975), reprinted at 31 Bus. Law 1727 (1976). See also American Bar As-sociation, Auditor's Letter Handbook (1990).

4American Institute of Certi�ed Public Accounts, Statement ofFinancial Accounting Standards No 5, Accounting for Contingencies (Mar1975), reprinted at 31 Bus. Law 1727 (1976). See also American Bar As-sociation, Auditor's Letter Handbook, 24–25 (1990); Medinol, Ltd. v. Bos-ton Scienti�c Corp., 214 F.R.D. 113, 115, 116 (S.D. N.Y. 2002) (discussingauditors and their independent role in providing opinion letters).

5See ch. 1.6Michael F. Sharp, Abraham M. Stanger, Audit Inquiry Response In

The Arena of Discovery: Protected By the Work Product Doctrine, 56 Bus.Law 183 (2000).


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accommodation regarding the responsibilities of auditors,clients, and attorneys in making such disclosures. The state-ments attempt to reconcile the public interest in full �nancialdisclosure with the public interest in preserving the con�den-tiality of attorney-client communications.

The AICPA Statement provides that auditors should:b. Obtain from management a description and evalua-

tion of litigation, claims and assessments that existedat the date of the balance sheet being reported on. . .

c. Obtain assurances from management . . . that theyhave disclosed all unasserted claims that the lawyerhas advised them are probable of assertion and mustbe disclosed in accordance with Statement of FinancialAccounting Standards No. 5.7

The AICPA Statement also provides that the auditorshould require the client to send a letter asking counsel tocorroborate or supplement this information as to matters towhich counsel devoted ‘‘substantive attention’’ on behalf ofthe company.8

With respect to pending or overtly threatened litigation,the AICPA statement advises that clients should requestcounsel to provide the auditor with a description of thenature of the matter, the progress of the case to date, the ac-tion the client plans to take, an evaluation of the likelihoodof an unfavorable outcome, and an estimate, if one can bemade, of the amount or range of potential loss.

Financial Accounting Standard No. 5 provides thatdisclosure of a loss contingency ‘‘shall be made when there isat least a reasonable possibility that a loss or an additionalloss may have been incurred.’’9 It continues by stating that:

The disclosure shall indicate the nature of the contingencyand shall give an estimate of the possible loss or state thatsuch an estimate cannot be made. Disclosure is not required ofa loss contingency involving an unasserted claim or assess-ment when there has been no manifestation by a potentialclaimant of an awareness of a possible claim or assessmentunless it is considered probable that a claim will be asserted

7American Institute of Certi�ed Public Accountants, Statement ofAuditing Standards No 12, ¶ 5 (Jan 1976). For a description of the require-ments of Financing Accounting Standard No. 5, see text below.

8American Institute of Certi�ed Public Accountants, Statement ofAuditing Standards No 12 ¶¶ 8 & 9 (Jan 1976).

9American Institute of Certi�ed Public Accountants, Statement ofFinancial Accounting Standards No 5, Accounting for Contingencies ¶ 10(Mar 1975), reprinted at 31 Bus. Law 1727, 1728 (1976) (emphasis added).


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and there is a reasonable possibility that the outcome will beunfavorable.10

The ABA Statement of Policy11 takes a narrower approachto disclosure. First, the Statement carefully limits the typesof information that may properly be provided by the lawyerto the auditor:

When properly requested by the client, it is appropriate forthe lawyer to furnish to the auditor information concerningthe following matters if the lawyer has been engaged by theclient to represent or advise the client professionally with re-spect thereto and he has devoted substantive attention to themin the form of legal representation or consultation:(a) overtly threatened or pending litigation, whether or notspeci�ed by the client; (b) a contractually assumed obligationwhich the client has speci�cally identi�ed and upon which theclient has speci�cally requested, in the inquiry letter or asupplement thereto, comment to the auditor; (c) an unassertedpossible claim or assessment which the client has speci�callyidenti�ed and upon which the client has speci�cally requested,in the inquiry letter or a supplement thereto, comment to theauditor.12

With regard to category (c) above, encompassing cases inwhich there has been no manifestation by a potential claim-ant of a present intention to assert a claim, the ABA State-ment provides that the client should request the lawyer tofurnish information to the auditor only if: (1) the claim ismaterial; (2) the ‘‘prospects of non-assertion seem slight’’;and (3) ‘‘the prospects of the claimant not succeeding arejudged to be extremely doubtful.’’13

In all cases, the ABA Statement notes, auditors should as-sume that lawyers will advise their clients on the applicablerequirements of Financial Accounting Standard No. 5 and

10American Institute of Certi�ed Public Accountants, Statement ofFinancial Accounting Standards No 5, Accounting for Contingencies ¶ 10(Mar 1975), reprinted at 31 Bus. Law 1727, 1728 (1976) (emphasis added).

11American Bar Association, Statement 31 Bus Law 1709 of PolicyRegarding Lawyers' Responses to Auditors' Requests for Information(1975), reprinted at 31 Bus. Law 1709 (1976). See also American Bar As-sociation, Auditor's Letter Handbook, 8–9 (1990).

12American Bar Association, Statement of Policy Regarding Lawyers'Responses to Auditors' Requests for Information ¶ 5 (1975), reprinted at31 Bus. Law 1709 (1976) (emphasis in original). See also American BarAssociation, Auditor's Letter Handbook, 8–9 (1990).

13American Bar Association, Statement of Policy Regarding Lawyers'Responses to Auditors' Requests for Information ¶ 5 (1975), reprinted at31 Bus. Law 1709 (1976) (emphasis added). See also American Bar As-sociation, Auditor's Letter Handbook, 8–9 (1990).


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the need for disclosure in each instance.14 The Commentaryon the ABA Statement cautions, however, that:

If a client discloses to a third party a part of any privilegedcommunication he has made to his attorney, there may havebeen a waiver as to the whole communication; further, it hasbeen suggested that giving accountants access to privilegedstatements made to attorneys may waive any privilege as tothose statements. Any disclosure of privileged communicationsrelating to a particular subject matter may have the e�ect ofwaiving the privilege on other communications with respect tothe same subject matter.

. . .

. . . It might be argued that any evaluation of a claim, tothe extent based upon a con�dential communication with theclient, waives any privilege with respect to the claim. Anotherdanger inherent in a lawyer's placing a value on a claim, orestimating the likely result, is that such a statement might betreated as an admission or might be otherwise prejudicial tothe client.15

It is well-settled under federal common law that theattorney-client privilege generally does not protect com-munications with auditors or accountants.16 The exception tothis rule is where the auditor or accountant is acting as theagent of counsel to assist counsel in formulating speci�c

14American Bar Association, Statement of Policy Regarding Lawyers'Responses to Auditors' Requests for Information ¶ 6 (1975), reprinted at31 Bus. Law 1709 (1976). See also American Bar Association, Auditor'sLetter Handbook, 10 (1990).

15American Bar Association, Statement of Policy Regarding Lawyers'Responses to Auditors' Requests for Information commentary to ¶ 1 (1975),reprinted at 31 Bus. Law 1709 (1976) (emphasis in original). See alsoAmerican Bar Association, Auditor's Letter Handbook, 12–13 (1990).

16See, e.g., In re John Doe Corp., 675 F.2d 482, 488, Fed. Sec. L. Rep.(CCH) P 98648, 10 Fed. R. Evid. Serv. 1390 (2d Cir. 1982) (‘‘We havepreviously held that statements to accountants unrelated to the seeking oflegal advice are not privileged.’’) (citations omitted); U.S. v. El Paso Co.,682 F.2d 530, 540, 82-2 U.S. Tax Cas. (CCH) P 9534, 11 Fed. R. Evid.Serv. 502, 34 Fed. R. Serv. 2d 918, 50 A.F.T.R.2d 82-5530 (5th Cir. 1982)(‘‘Our Circuit does not recognize an accountant-client communicationsprivilege and, as the Supreme Court has acknowledged, neither does anyother federal court.’’) (citations omitted); In re Honeywell Intern., Inc. Se-curities Litigation, 2003 WL 22722961 (S.D. N.Y. 2003), at *3 (attorney-client privilege does not extend to communications between a companyand its accountants or auditors); First Federal Sav. Bank of Hegewisch v.U.S., 55 Fed. Cl. 263, 269 (2003) (documents transmitted to an agent forthe preparation of an audited �nancial statement are not privileged); U.S.v. South Chicago Bank, 1998 WL 774001 (N.D. Ill. 1998), at *3 (‘‘auditorsare not generally part of the circle of persons, including secretaries andinterpreters, for example, with whom con�dential information may beshared without destroying the privilege.’’) (citations omitted).


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legal advice for the client.17 Independent auditors conductingannual audits are not acting as agents of counsel for thepurpose of providing legal advice, and communications be-tween the corporation or its counsel and the auditor gener-ally are not protected by the attorney-client privilege.18

Disclosure to an auditor of information that is otherwiseprivileged under the attorney-client privilege generally willwaive the privilege,19 including the privilege over unredacted

17See, e.g., Ferko v. National Ass'n for Stock Car Auto Racing, Inc., 218F.R.D. 125, 140 (E.D. Tex. 2003). In Ferko, general counsel of InternationalSpeedway Corp. hired an independent appraisal �rm to investigate andappraise the economic value of certain agreements pursuant to recentlyrevised accounting standards relating to intangible assets, because counselbelieved that the company had taken an aggressive stance that could trig-ger litigation with the SEC. 218 F.R.D. at 129. Although the court notedthe general rule that ‘‘a client's disclosure of documents directly to anauditor, accountant or tax analyst destroys con�dentiality with respect tothose documents’’ (218 F.R.D. at 134), the court held that communicationswith the accountant were privileged in this case because counsel hadhired the accountant to help translate complicated �nancial informationto enable him to formulate legal advice for the company. 218 F.R.D. at139; see also § 3:4 (accountants as privileged agents).

18See U.S. v. El Paso Co., 682 F.2d 530, 539, 82-2 U.S. Tax Cas. (CCH)P 9534, 11 Fed. R. Evid. Serv. 502, 34 Fed. R. Serv. 2d 918, 50 A.F.T.R.2d82-5530 (5th Cir. 1982); First Federal Sav. Bank of Hegewisch v. U.S., 55Fed. Cl. 263, 268 (2003); In re P�zer Inc. Securities Litigation, 1993 WL561125 (S.D. N.Y. 1993), at *7.

19U.S. v. El Paso Co., 682 F.2d 530, 540, 82-2 U.S. Tax Cas. (CCH) P9534, 11 Fed. R. Evid. Serv. 502, 34 Fed. R. Serv. 2d 918, 50 A.F.T.R.2d82-5530 (5th Cir. 1982) (disclosure of tax pool analysis to auditors‘‘destroys con�dentiality’’ and waives the attorney-client privilege); In reJohn Doe Corp., 675 F.2d 482, 488, 489, Fed. Sec. L. Rep. (CCH) P 98648,10 Fed. R. Evid. Serv. 1390 (2d Cir. 1982) (conversation between corporategeneral counsel and accountant during course of annual audit regardingquestionable payments to a lawyer that had been the subject of an internalinvestigation ‘‘either waives the privilege or, what is much the same thingin the circumstances of this case, evidences a corporate decision to use thematerials for purposes other than seeking legal advice’’); Chevron Corp. v.Pennzoil Co., 974 F.2d 1156, 1162, Fed. Sec. L. Rep. (CCH) P 97004, 36Fed. R. Evid. Serv. 761 (9th Cir. 1992) (Pennzoil conceded that districtcourt was correct in �nding waiver with respect to documents disclosed tooutside auditor; appellate court limited scope of waiver to the communica-tions actually disclosed rather than extending it to all communicationsconcerning the same subject matter); In re Honeywell Intern., Inc. Securi-ties Litigation, 2003 WL 22722961 (S.D. N.Y. 2003), at *3 (disclosure tooutside auditor waived attorney-client privilege); U.S. ex rel. Robinson v.Northrop Grumman Corp., 2002 WL 31478259 (N.D. Ill. 2002), subsequentdetermination, 2003 WL 21439871 (N.D. Ill. 2003) (privilege with respectto documents prepared by auditors during course of �rst, privileged review,waived to extent used by same auditors for second, non-privileged review);see also U.S. ex rel. Robinson v. Northrop Grumman Corp., 2003 WL21439871 (N.D. Ill. 2003), at *3 (following further review, Northrop Grum-


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board minutes that have been disclosed as part of a regularaudit.20

The courts are less uniform when confronting the workproduct protection. The issue of waiver of the work-productdoctrine arises with respect to two types of documents: docu-ments prepared by the corporation or counsel for the audi-tor, such as audit letters that assess litigation or potentiallitigation, and documents prepared in anticipation of litiga-tion that were not prepared for the auditor, but which aredisclosed to the auditor during the course of an audit. Thecourt in In re Raytheon Securities Litigation21 recentlyanalyzed whether audit letters prepared by counsel in re-sponse to an auditor's inquiry are protected by the workproduct doctrine. In Raytheon, plainti� moved to compel thecompany to produce audit opinion letters and other docu-ments prepared by its attorneys that had been submitted tothe company's independent audit or for use in an audit.22

The opinion provides a detailed discussion of the split amongthe courts on the question whether opinion letters providedto auditors are protected by the work product doctrine. Theoutcome often turns on the standard that a court applies forthe phrase ‘‘prepared in anticipation of litigation or for trial’’in Rule 26(b)(3) of the Federal Rules of Civil Procedure. Injurisdictions where the phrase is interpreted to encompassdocuments that have been prepared ‘‘because of’’ litigation,the courts generally �nd that audit opinion letters areprotected because the letters were prepared ‘‘because of’’

man failed to sustain its burden of demonstrating that interview noteswere not used for the second, non-privileged review).

20See First Federal Sav. Bank of Hegewisch v. U.S., 55 Fed. Cl. 263(2003) (disclosure of unredacted board minutes to auditor during annualaudit waived the attorney-client privilege that otherwise protectedcounsel's advice re�ected in the minutes); U.S. v. South Chicago Bank,1998 WL 774001 (N.D. Ill. 1998), at *3 (‘‘By voluntarily disclosing theminutes from the meetings of the boards of directors and special fraudcommittees to the year-end auditors in full and to their insurance companyin part, the banks have relinquished the right to assert the privilege nowagainst the government.’’); Eglin Federal Credit Union v. Cantor,Fitzgerald Securities Corp., 91 F.R.D. 414, 7 Fed. R. Evid. Serv. 1604, 31Fed. R. Serv. 2d 709, 31 Fed. R. Serv. 2d 713 (N.D. Ga. 1981) (disclosureof board minutes for the purposes of annual audit waives any applicableattorney-client privilege).

21In re Raytheon Securities Litigation, 218 F.R.D. 354 (D. Mass. 2003).22In re Raytheon Securities Litigation, 218 F.R.D. 354, 356 (D. Mass.

2003).


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litigation.23

Courts in jurisdictions that apply the ‘‘primary motiva-tion’’ test to the ‘‘anticipation of litigation’’ requirement gen-erally �nd that audit letters are not protected by the workproduct doctrine.24

To the extent that a company discloses to its auditor docu-ments that were prepared in the anticipation of litigationand not for the auditor, a few courts have held that the workproduct protection may be waived. The work product protec-

23In re Raytheon Securities Litigation, 218 F.R.D. 354, 358 (D. Mass.2003). See U.S. v. Adlman, 134 F.3d 1194, 1200, 98-1 U.S. Tax Cas. (CCH)P 50230, 39 Fed. R. Serv. 3d 1189, 81 A.F.T.R.2d 98-820 (2d Cir. 1998)(court adopts ‘‘because of’’ approach and concludes, in dicta, that workproduct doctrine would protect a memorandum prepared by a company'sattorneys at an independent auditor's request ‘‘estimating the likelihoodof success in litigation and an accompanying analysis of the company'slegal strategies and options to assist it in estimating what should bereserved for litigation losses’’); In re Honeywell Intern., Inc. Securities Lit-igation, 2003 WL 22722961 (S.D. N.Y. 2003), at *6 (company's assertion ofwork product protection for its audit letters and litigation reports pre-pared by its internal and outside counsel, as well as the auditor's docu-ments memorializing the company's opinion work product, was proper);Southern Scrap Material Co. v. Fleming, 2003 WL 21474516 (E.D. La.2003), at *9 (work product doctrine applies to audit letters sent to auditorby company's outside counsel that summarize on-going litigation andre�ect counsel's mental impressions, opinions and litigation strategy); Inre P�zer Inc. Securities Litigation, 1993 WL 561125 (S.D. N.Y. 1993), at*6 (disclosure of individual case reserves to company's auditor did notwaive the work product protection); Tronitech, Inc. v. NCR Corp., 108F.R.D. 655, 656, 1986-1 Trade Cas. (CCH) P 67161, 3 Fed. R. Serv. 3d1265 (S.D. Ind. 1985) (an audit letter ‘‘is prepared because of the litiga-tion, and it is comprised of the sum total of the attorney's conclusions andlegal theories concerning that litigation’’).

24In re Raytheon Securities Litigation, 218 F.R.D. 354, 358 (D. Mass.2003). See U.S. v. Gulf Oil Corp., 760 F.2d 292, 297, 17 Fed. R. Evid. Serv.896, 1 Fed. R. Serv. 3d 528 (Emer. Ct. App. 1985) (documents created inresponse to auditor's inquiry were not created for the primary purpose ofassisting the company in litigation but rather to assist the auditor toprepare �nancial reports that would satisfy the requirements of the federalsecurities laws); U.S. v. El Paso Co., 682 F.2d 530, 543, 54482-2 U.S. TaxCas. (CCH) P 9534, 11 Fed. R. Evid. Serv. 502, 34 Fed. R. Serv. 2d 918, 50A.F.T.R.2d 82-5530 (5th Cir. 1982) (documents ‘‘written ultimately tocomply with SEC regulations’’ were prepared ‘‘with an eye on its businessneeds, nor on its legal ones’’ and do not ‘‘contemplate litigation in thesense required to bring it within the work product doctrine’’); IndependentPetrochemical Corp. v. Aetna Cas. and Sur. Co., 117 F.R.D. 292, 298(D.D.C. 1987) (declining to extend work product protection to audit lettersprepared by an attorney where Magistrate Judge's in camera examinationof the letter reveals that they were not prepared to assist company inpresent or reasonably anticipated litigation but rather to assist account-ing �rm ‘‘in the performance of regular accounting work done by such ac-counting �rms’’).


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tion may be waived through disclosure.25 Disclosures to non-adversary third parties generally does not waive the protec-tion unless it substantially increases the opportunity forpotential adversaries to obtain the information.26 Somecourts have held that disclosure to auditors does notsubstantially increase this opportunity.27 Other courts havefocused on the independence of the auditor and the auditor'sresponsibilities to creditors and the investing public.28 Thecourt in Raytheon quoted the United States Supreme Court'scharacterization of an independent auditor in United Statesv. Arthur Young & Co.:

By certifying the public reports that collectively depict acorporation's �nancial status, the independent auditor as-sumes a public responsibility transcending any employmentrelationship with the client. The independent public accoun-tant performing this special function owes ultimate allegianceto the corporation's creditors and stockholders, as well as tothe investing public. This ‘‘public watchdog’’ function demandsthat the accountant maintain total independence from the cli-ent at all times and requires complete �delity to the publictrust.29

The court in the Raytheon decision did not decide whetherthe company's disclosure of work product to its auditorswaived that protection, and instructed the company to pro-duce the documents at issue to the court in camera so thatthe court could determine, among other things, ‘‘the scope oflitigation information an independent auditor or auditedcompany can reasonably be expected to disclose in public�nancial reports.’’30 In an unpublished Order, the court inRaytheon subsequently held that the company had waivedthe work product protection by disclosing the documents to

25In re Raytheon Securities Litigation, 218 F.R.D. 354, 359 (D. Mass.2003).

26In re Raytheon Securities Litigation, 218 F.R.D. 354, 360 (D. Mass.2003). See also ch. 2.

27In re P�zer Inc. Securities Litigation, 1993 WL 561125 (S.D. N.Y.1993), at *6 (auditor shared common interests with company, thereforeauditor is ‘‘not reasonably viewed as a conduit to a potential adversary’’).

28In re Raytheon Securities Litigation, 218 F.R.D. 354 (D. Mass. 2003).29U.S. v. Arthur Young & Co., 465 U.S. 805, 817–818, 104 S. Ct. 1495,

79 L. Ed. 2d 826, Fed. Sec. L. Rep. (CCH) P 99721, 84-1 U.S. Tax Cas.(CCH) P 9305, 15 Fed. R. Evid. Serv. 15, 53 A.F.T.R.2d 84-866 (1984).

30In re Raytheon Securities Litigation, 218 F.R.D. 354, 361 (D. Mass.2003).


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its auditors.31 There is some limited additional authoritysupporting waiver based on disclosure of work product to acompany's auditors.32 Courts that focus on the independenceof auditors may draw further support from the recentlyenacted Sarbanes-Oxley Act, which enhances the indepen-dence requirements for auditors.33

II. STATE LAW

§ 3:6 GenerallyEighteen states have enacted statutes which provide for

an accountant-client privilege: Arizona, Colorado, Florida,Georgia, Idaho, Illinois, Indiana, Kansas, Louisiana, Mary-land, Michigan, Mississippi, Missouri, Nevada, New Mexico,

31In re Raytheon Sec. Litig., No. Civ. A. 99-12142-PBS, unpublished Or-der, at pp. 1, 2 (D. Mass. February 3, 2004). The Order states in part:‘‘PwC has indicated that it relied on these materials in performing itsaudit procedures and that it ‘intends to introduce evidence of such workas necessary to rebut plainti�'s assertions that PwC failed to conduct aGAAS audit.' It is permitted to do so ‘in the case of legal process or theauditor's defense of the audit'. See ABA Statement of Policy RegardingLawyers' Response to Auditors' Requests for Information, ¶ 7 and Com-mentary . . . Therefore, Raytheon understood that PwC retained the rightto disseminate the information for the limited purpose of defending theaudit, and it has waived any work product protection (even for opinionwork product) at least to the extent the standard was applicable.’’ Thecourt ordered that any opinion work product be sealed and subject to aprotective order so that trial adversaries in other litigation would nothave access to counsel's opinions. In re Raytheon Sec. Litig., No. Civ. A.99-12142-PBS, unpublished Order, at p. 2 (D. Mass. February 3, 2004).

32See Medinol, Ltd. v. Boston Scienti�c Corp., 214 F.R.D. 113, 116, 117(S.D. N.Y. 2002) (Auditor's interests not aligned with company's; whiledisclosure of special litigation committee minutes to auditor may notsubstantially increase the risk that such work product would reachpotential adversaries, disclosure to auditor did not serve the privacyinterests that the work product doctrine was intended to protect); In reDiasonics Securities Litigation, Fed. Sec. L. Rep. (CCH) P 92817, 1986 WL53402 (N.D. Cal. 1986) (documents disclosed to public auditor not entitledto work product protection and, when entitled to such protection, theprotection was waived). But see Merrill Lynch & Co., Inc. v. AlleghenyEnergy, Inc., 2004 WL 2389822 (S.D. N.Y. 2004) at *5 to 8 (holding thatthe relationship of the auditor should be evaluated on a case by case basisand �nding no waiver where company supplied internal investigationreports to its auditor.

33See generally Matthew A. Melone, United States Accounting Stan-dards — Rules or Principles? The Devil is Not in the Details, 58 U. MiamiL. Rev. 1161, 1210–1213 (2004) (discussing Sarbanes-Oxley rules increas-ing independence of auditors); Larry Cata Backer, The Duty to Monitor:Emerging Obligations of Outside Lawyers and Auditors To Detect andReport Corporate Wrongdoing Beyond The Federal Securities Laws, 77 St.John's L. Rev. 919 (2003); Jared Kopel, The SEC's New Auditor Indepen-dence Rules, 17 No. 3 Insights 2, March, 2003.


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KeyCiteL: Cases and other legal materials listed in KeyCite Scope can beresearched through the KeyCite service on WestlawL. Use KeyCite tocheck citations for form, parallel references, prior and later history, andcomprehensive citator information, including citations to other decisionsand secondary materials.

I. INTRODUCTION

§ 4:1 The privilege de�nedResearch ReferencesWest's Key Number Digest, Witnesses ”297

The Fifth Amendment to the United States Constitutionprovides, in part, that ‘‘[n]o person... shall be compelled inany criminal case to be a witness against himself. . . .’’1Once de�ned by the Supreme Court as ‘‘the essentialmainstay of our adversary system,’’2 the privilege againstself-incrimination guarantees each individual the right toremain silent without penalty,3 and, more speci�cally, theright not to be compelled to produce testimonial or com-municative evidence that may be incriminating. A witnessprotected by the privilege may rightfully refuse to answerquestions or testify unless he or she is protected against theuse of the compelled testimony, and evidence derived fromcompelled testimony, in any subsequent criminal prosecu-tion against him or her. If the witness is nonetheless com-pelled to answer without such protection, the answers areinadmissible against him or her in a subsequent criminaltrial.4

[Section 4:1]1The Fourteenth Amendment makes the Fifth Amendment privilege

binding on the states as well as the federal government. Gri�n v. Califor-nia, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). A statemay grant its citizens greater, but not less, protection against self-incrimination than that of the Fifth Amendment. See U. S. ex rel. Laino v.Warden of Wallkill Prison, 246 F. Supp. 72, 77, 78 (S.D. N.Y. 1965), judg-ment a�'d, 355 F.2d 208 (2d Cir. 1966).

2Miranda v. Arizona, 384 U.S. 436, 460, 86 S. Ct. 1602, 16 L. Ed. 2d694, 10 A.L.R.3d 974 (1966); see also Murphy v. Waterfront Com'n of NewYork Harbor, 378 U.S. 52, 55, 84 S. Ct. 1594, 12 L. Ed. 2d 678, 56 L.R.R.M.(BNA) 2544, 49 Lab. Cas. (CCH) P 51102 (1964) (the Fifth Amendmentprivilege ‘‘re�ects many of our fundamental values and most noble aspira-tions . . .”).

3Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).4Garner v. U. S., 424 U.S. 648, 653, 96 S. Ct. 1178, 47 L. Ed. 2d 370,

76-1 U.S. Tax Cas. (CCH) P 9301, 76-1 U.S. Tax Cas. (CCH) P 16218, 37A.F.T.R.2d 76-1042-A (1976).

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In light of the historical origins of the privilege,5 courtshave applied the privilege broadly. The Supreme Court hasheld that the privilege should ‘‘be accorded liberal construc-tion in favor of the right it was intended to secure.’’6 Theprivilege may be invoked in many types of proceedings: civil,criminal, quasi-criminal, administrative, legislative, judicial,investigatory, and adjudicatory. The privilege also barsdisclosures that the witness ‘‘reasonably believes could beused in a criminal prosecution or could lead to other evi-dence that might be so used.’’7

The privilege is not unlimited, however. It may be invokedonly to protect against ‘‘real dangers, not remote and specula-tive possibilities,’’8 and only to avoid being forced to person-ally produce incriminating evidence, not to prevent the pro-duction of incriminating evidence from other sources.Ultimately, the judge, focusing on what a ‘‘truthful answermight disclose,’’9 must determine the legitimacy of the wit-ness' claim of privilege.

When a witness invokes the Fifth Amendment privilegeagainst self-incrimination, the judge must determinewhether that privilege is applicable to the case at hand. As ageneral rule, where there can be no further incrimination,there is no basis for the assertion of the privilege. If noadverse consequences can be visited upon the convictedperson by reason of further testimony, then there is no fur-

5For good discussions of the historical development of the privilege, seeUllmann v. U.S., 350 U.S. 422, 445-49, 76 S. Ct. 497, 100 L. Ed. 511, 53A.L.R.2d 1008 (1956), and sources cited in De Luna v. U.S., 308 F.2d 140,144 n3, 1 A.L.R.3d 969 (5th Cir. 1962) (rejected by, U.S. v. Pirro, 76 F.Supp. 2d 478 (S.D. N.Y. 1999)); see also 8 Wigmore § 2250, at 267–92(McNaughton rev ed 1961); L. Levy, Origins of the Fifth Amendment(1968).

6Ho�man v. U. S., 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118(1951); see also Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed.2d 527 (1967).

7Kastigar v. U.S., 406 U.S. 441, 445, 92 S. Ct. 1653, 32 L. Ed. 2d 212(1972). Izen v. Catalina, 256 F.3d 324 (5th Cir. 2001).

8Zicarelli v. New Jersey State Commission of Investigation, 406 U.S.472, 478, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972); see also Marchetti v.U.S., 390 U.S. 39, 53, 88 S. Ct. 697, 19 L. Ed. 2d 889, 68-1 U.S. Tax Cas.(CCH) P 15800, 21 A.F.T.R.2d 539 (1968) (danger must be ‘‘real and ap-preciable’’ not merely ‘‘fri�ing or imaginary’’); U.S. v. Bowling, 239 F.3d973, 976 (8th Cir. 2001).

9Zicarelli v. New Jersey State Commission of Investigation, 406 U.S.472, 478, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972).


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ther incrimination to be feared.10

The duty of a trial court when confronted with an invoca-tion of a party's Fifth Amendment privilege in a civil case isto ‘‘strive to accommodate a party's Fifth Amendmentinterests’’ while at the same time being careful to ‘‘ensurethat the opposing party is not unduly disadvantaged.’’ Theburden on the party asserting the privilege ‘‘should be nomore than is necessary to prevent unfair and unnecessaryprejudice to the other side.’’11

In the wake of the Supreme Court's decision in Brogan v.U.S.,12 which rejected the ‘‘exculpatory no’’ doctrine and heldthat simple denials of culpability to investigators can beprosecuted as a false statement, one further caveat must beadded. To assert the privilege, a witness may either invokethe privilege or (if wrongly required by a judicial o�cer)testify truthfully and seek later to have the wrongfully com-pelled testimony suppressed as violative of the privilege.However, false statements under oath—even if obtainedunder a grant of immunity—can be the basis of a subsequentperjury prosecution.13

As in other areas of constitutional law, the precise scope ofthe Fifth Amendment privilege is not constant, although itis possible to identify recurring themes. This chapter isintended to describe the contours of the privilege articulatedby the federal courts; counsel are advised to consult stateprecedents where necessary. The chapter is also intended todistinguish those aspects of the privilege that are relativelywell established from those that are relatively unsettled.

The case law in this area is both voluminous and complex.Thus, the chapter focuses primarily on the key elements ofthe privilege. After discussing the concept of incrimination,the chapter turns to the following questions: First, who may(and who may not) claim the privilege? Second, in whichproceedings may the privilege be claimed? Third, what evi-dence falls within the privilege? Fourth, what constitutescompulsion? Fifth, what are the mechanics of claiming andprotecting the privilege? Finally, how and to what extentmay the privilege be waived or abrogated?

10In re Vitamins Antitrust Litigation, 120 F. Supp. 2d 58, 2000-2 TradeCas. (CCH) P 73092 (D.D.C. 2000).

11In re Vitamins Antitrust Litigation, 120 F. Supp. 2d 58, 2000-2 TradeCas. (CCH) P 73092 (D.D.C. 2000).

12Brogan v. U.S., 522 U.S. 398, 118 S. Ct. 805, 139 L. Ed. 2d 830 (1998).13U. S. v. Apfelbaum, 445 U.S. 115, 100 S. Ct. 948, 63 L. Ed. 2d 250

(1980).

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Testimonial Privileges

Documents

Transcript of Testimonial Privileges