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Article
Broken Principle: Solving the Corporate Privilege Waiver Dilemma
New Jersey Law Journal (2009)
  • Don R Berthiaume
Abstract

How can corporations cooperate in white collar criminal investigations by providing “just the facts” without waiving the attorney client privilege and work product protection? This article provides a unique solution to this vexing problem. This article argues that Rule 30(b)(6) of the Federal Rules of Civil Procedure, which allows civil litigants to issue a subpoena to an organization and cause them to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf... about information known or reasonably available to the organization,” provides a template for the creation of a similar rule for the Federal Rules of Criminal Procedure. This new rule will allow corporations to provide "the facts" to the government without waiving the attorney-client privilege and work product protection; thus, solving the concerns with privilege waiver that continue to resound through the white collar criminal bar.

Keywords
  • Attorney Client Privilege,
  • privilege waiver,
  • evidence
Disciplines
Publication Date
Winter February 23, 2009
Publisher Statement
Reprinted with permission of the New Jersey Law Journal
Citation Information
Don R. Berthiaume, Broken Principle; Solving the Corporate Privilege Waiver Dilemma, 195 N.J.L.J. 8 (February 23, 2009).