Priviledge might be preserved in government investigations

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Selective Priviledge Waiver

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You may be pressured into producing the company's attorney-client privileged documents in response to a prosecutor's demand.

Does production automatically waive the privilege in civil suits by other persons? Here is a tip for what you should insist upon with the prosecutor.

The trial court in In re Natural Gas Commodity Litig., 2005 U.S. Dist. LEXIS 11950 (S.D.N.Y. June 21, 2005) held that a production of privileged documents in response to a prosecutor's demand does not automatically waive the privilege as to other persons. In providing that the documents were still protected, even though disclosed to a government prosecutor in an attempt to avoid criminal prosecution, the court found it important that in the production to the government there was a clear written agreement containing the following points:

	An express statement that the privileged information was provided to the agency only in reliance on the agency's agreement to return the documents and retain no copy thereof;
	An express statement [acknowledgement] that the disclosed material was, indeed, privileged and that the company intended to preserve its privileged character;
	An express statement that there was no general waiver of privilege as to the subject matters discussed in the documents, and there was no waiver of privilege as to third parties whatsoever;
	An express confidentiality and nondisclosure agreement statement from the agency to which the documents were disclosed; and
	An express agreement statement from the agency that it itself would not assert that the production of the materials constituted a waiver of the privilege in further proceedings.

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