Sunday, April 15, 2007

Privilege Waiver Upheld

In a recent decision, the United States Court of Appeals for the District of Columbia Circuit upheld the District Court's decision to enforce a subpoena for testimony of corporate counsel concerning his communications with a corporation executive and the executive's retained outside counsel. The corporation conducted an internal investigation of possible federal election law violations. The results were submitted to the Department of Justice, which began an investigation. A document was submitted by the corporation that appeared to be exculpatory evidence. The document had in fact been backdated. Because it had been voluntarily submitted to DOJ, the privilege was waived. In any event, the crime-fraud exception applied to the fraudulent document. The court further held that neither the D.C. Bar rule regarding confidentiality or the existence of a joint defense agreement between corporate counsel and outside counsel for a corporate executive affected the result. Outside counsel had sought to quash the subpoena seeking corporate counsel's testimony. (Mike Frisch)

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