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Just the Facts: Solving the Corporate Privilege Waiver Dilemma
Criminal Law Bulletin (2010)
  • Don R Berthiaume

How can corporations provide “just the facts” — which are, in fact, not privileged — without waiving the attorney client privilege and work product protection? This article argues for an addition to the Federal Rules of Criminal Procedure based upon 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.”[6] Why should we look to Fed. R. Civ. P. 30(b)(6)? Rule 30(b)(6) answered a similar problem faced by corporations as civil defendants prior to its adoption in 1970: how to provide factual answers to opposing counsel in a judicially efficient manner. With Rule 30(b)(6) serving as its template, the rule proposed by this article will allow corporations to provide “the facts” to the government without waiving the attorney-client privilege and work product protection, thus solving concerns with privilege waiver that resound through the white collar criminal bar.

  • Privilege,
  • Attorney-Client Privilege,
  • Waiver,
  • privilege waiver,
  • Rule 30(b)(6),
  • white collar crime,
  • corporate privilege waiver,
  • Holder Memo,
  • Thompson Memo,
  • McNulty Memo,
  • Internal Investigation
Publication Date
Winter January, 2010
Publisher Statement
This publication was created to provide you with accurate and authoritative information concerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
Citation Information
Don R Berthiaume. "Just the Facts: Solving the Corporate Privilege Waiver Dilemma" Criminal Law Bulletin Vol. 46 Iss. 1 (2010)
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