Academic journal article The University of Memphis Law Review

Selective Waiver: Should the Government Be Privy to Privileged Information without Waiving the Attorney-Client Privilege and Work Product Doctrine?

Academic journal article The University of Memphis Law Review

Selective Waiver: Should the Government Be Privy to Privileged Information without Waiving the Attorney-Client Privilege and Work Product Doctrine?

Article excerpt


Imagine you have a chronic illness and are admitted to the hospital multiple times. Your insurance pays eighty percent of the admission costs; you pay twenty percent. Still, that twenty percent results in a substantial outlay of cash. Subsequently, you hear that the hospital miscoded your admissions; therefore, you overpaid the hospital a substantial amount of money, and you decide to sue the hospital. During discovery, you learn the hospital also overcharged the government by miscoding Medicare claims. In fact, the hospital's miscoding was so egregious that the hospital paid the Department of justice (DOJ) $840 million in a settlement deal. The evidence, primarily internal audits, used to indict the hospital was then given to the DOJ as part of the settlement deal. However, the hospital will not let anyone else see the results of the audits, which is the proof needed to substantiate your claim against the hospital. The hospital maintains that the audit information does not have to be released to you or any other party because it is confidential information protected by the attorney-client privilege and work product doctrine. The hospital claims that the fact that the DOJ got to see this "confidential information" is irrelevant. Is this fair?

Should corporations that cooperate with governmental entities and, in the process, divulge attorney-client and work product secrets be allowed to later resurrect confidentiality privileges against subsequent litigants? This concept of allowing a corporation to waive the attorney-client and work product doctrines to a government entity while upholding these privileges1 against others is commonly referred to as "selective waiver."2

This ability to select which adversaries are privy to privileged information goes directly against the bases upon which both privileges are grounded, which is, once a confidence is disclosed to a third party, that information is deemed waived as to all other adversaries.3 The justifications most often cited for upholding these privileges are to promote public policy interests and protect justice.4 Are there any scenarios, however, where these justifications are outweighed by the government's need to know?

Since the Eighth Circuit decided Diversified Industries v. Meredith5 in 1978, a split of opinion has developed in the United States Courts of Appeal on the subject of selective waiver.6 Recently, the Sixth Circuit ruled on this issue and refused to uphold selective waiver even when a confidentiality agreement had been signed prior to disclosure.7 Several circuits follow this approach.8 Other circuits, however, have suggested that they would endorse "some selective waiver"9 under certain circumstances, such as if the disclosing party and the government specifically reserved the privilege via a confidentiality agreement prior to disclosure.10 The lone circuit that embraces selective waiver, notwithstanding a confidentiality agreement, is the Eighth Circuit.11

Because the attorney-client privilege and work product doctrine are the most commonly invoked privileges in the federal courts, the need for consistency in upholding or waiving the privileges cannot be underestimated.12 This note proposes that the dissent's position in Columbia/HCA be adopted. In that dissent, Judge Boggs advocated for recognition of government waiver, because he believed it would increase the information available in a government investigation and thereby "aid the truth-seeking process."13 Although the dissent left the question of the necessity of a confidentiality agreement open, this note endorses that additional prerequisite.14

This note first examines the bases and justifications of the attorney-client privilege and work product doctrine. The attorneyclient privilege protects information shared between a client and an attorney and is premised on the public policy ideal that justice can only be fully served when a client feels free to disclose all to his attorney without fear that secrets will be divulged. …

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