The National Law Journal has a feature article (subscrip. req’d) in its most recent edition on the SEC’s use of private counsel to investigate corporate malfeasance. The article includes a discussion of the conflicting “waiver of privilege” rulings that that have arisen out of the McKesson HBOC securities litigation. (The 10b-5 Daily has posted about some of those decisions.)
Quote of note: “In 2001, the SEC began offering favorable treatment to troubled companies that hire independent counsel to do internal corporate investigations and report back to the SEC. But with that has come a host of new legal challenges. Do companies that waive attorney-client privilege and turn over the results of internal investigations to the SEC also waive the privilege for third parties, such as plaintiffs’ lawyers representing shareholders? And have the outside counsel become, in effect, agents of the government so that cooperating employees need to be given Miranda warnings?”
The 10b-5 Daily 