Selective Waiver

The U.S. Court of Appeals for the Tenth Circuit has issued an opinion in the Qwest securities litigation on the issue of selective waiver. See In re Qwest Communications Int’l Inc. Sec. Litig., 2006 WL 1668246 (10th Cir. June 19, 2006). In particular, the court considered whether the company could withhold documents from the plaintiffs on the grounds of attorney-client privilege or the work-product doctrine even though those documents had previously been produced to the SEC.

After an exhaustive survey of related decisions, revealing that circuit courts generally have rejected the concept of selective waiver, the court held that the record in the case did “not establish a need for a rule of selective waiver to assure cooperation with law enforcement, to further the purposes of the attorney-client privilege or work-product doctine, or to avoid unfairness to the disclosing party.” In the court’s view, Qwest was seeking “the substantial equivalent of an entirely new privilege, i.e., a government-investigation privilege,” which the court was disinclined to create. (Note that the production of opinion work product was not an issue in the case.)

The Rocky Mountain News has an article on the decision.

Quote of note: “At least to the degree exhorted by amici, ‘the culture of waiver’ appears to be of relatively recent vintage. Whether the pressures facing corporations in federal investigations present a hardened, entrenched problem suitable for common-law intervention or merely a passing phenomenon that may soon be addressed in other venues is unclear.”