The Availability of Common Law Privileges for Witnesses in Congressional Investigations

By Bopp, Michael D.; Lay, DeLisa | Harvard Journal of Law & Public Policy, Summer 2012 | Go to article overview

The Availability of Common Law Privileges for Witnesses in Congressional Investigations


Bopp, Michael D., Lay, DeLisa, Harvard Journal of Law & Public Policy


INTRODUCTION    I. CONGRESSIONAL INVESTIGATIVE      AUTHORITY   II. CONGRESSIONAL RECOGNITION      OF PRIVILEGES      A. Enforcement Power in         Investigations      B. Privileges         1. Common Law Privileges Ate            Not Constitutionally Protected            and Thus Do Not Apply            to Congress  III. ATTORNEY-CLIENT CONFIDENTIALITY      A. Although Not Required,         Congressional Investigative         Committees May Recognize         a Legitimate Claim of         Attorney-Client Privilege      B. Third Parties         1. Functional Equivalent Test         2. Agency Test         3. In re Grand Jury Subpoenas         4. Attorney-Consultants   IV. WORK PRODUCT DOCTRINE      A. The Work Product Doctrine         Protects Materials Prepared         in Anticipation of Litigation      B. Several Courts Do Not Consider         Congressional Investigations         To Be Litigation for Purposes         of the Work Product Doctrine    V. COMMON INTEREST DOCTRINE   VI. SELECTIVE WAIVER      A. Selective Waiver of the         Attorney-Client Privilege         and the Work Product         Doctrine      B. Practical Application of         Waiver Principles to         Congressional Investigations  CONCLUSION 

INTRODUCTION

The Chairman gaveled the hearing to order. Executives from four companies were set to testify, their lawyers whispering last-minute advice in their ears. Reporters, spectators, and lobbyists filled the hearing room as the Chairman began his opening remarks.

Noting that the Department of Justice (DOJ) also was investigating the alleged misconduct, the Chairman announced that the hearing would bring to light "an immoral practice" and a business culture that valued profit over human safety.

Under investigation by the congressional investigative committee were four companies that sold allegedly defective products to the government, resulting in injuries to government employees. These companies contracted with the government to produce the product and sold it exclusively to government agencies.

News reports suggested the companies might have known about problems with the product before delivery, meaning these injuries might have been preventable. The news reports also indicated that some injured employees planned to sue at least one, and possibly all, of the companies.

For six months, congressional investigators had been preparing for this hearing. For more than a year the companies had been under DOJ investigation. During this time, both the DOJ and the committee had requested tens of thousands of documents, some of which were privileged.

The companies' lawyers all agreed that privileged documents should be withheld from the DOJ. The DOJ in response requested a privilege log detailing which documents had been withheld and the reasons for withholding them but went no further in its request for the documents.

The lawyers for the targeted companies, who had been communicating amongst themselves regarding the investigations, were split when it came to providing privileged documents to a congressional committee. Although some wanted to withhold the documents, others wanted to seek an agreement from the committee that any documents produced would be held by the committee in confidence. The congressional investigators also requested a privilege log.

Outside counsel for the companies had been sharing information relating to the congressional investigation. Subpoenas issued to the four companies by the committee were broad enough to encompass notes and other records of such communications. Although two of the companies wanted to release these documents, the others objected and noted that release by one company would constitute waiver of privilege by the others.

Three weeks after the companies gave the committee their privilege logs, they received a letter from the Chairman threatening contempt of Congress if the companies failed to produce the documents identified in the privilege logs. …

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