Once the cat is out of the bag: Whether the doctrine of selective waiver applies to preserve privilege when information is voluntarily disclosed to the SEC or other government agencies

The passage of the Sarbanes‐Oxley Act has heightened awareness of the importance for companies to conduct internal investigations in appropriate circumstances when wrongdoing is suspected. When such an investigation is conducted, the challenges faced by the company may include whether to disclose voluntarily the results of the internal investigation to governmental agencies and regulators, such as the Securities and Exchange Commission or the Department of Justice, who are investigating the suspected wrongdoing and potentially threatening civil or criminal charges against the company. The decision as to whether to disclose such results is riddled with potential pitfalls, including the concern that disclosing information in this manner will waive the attorney‐client privilege or work product protection with respect to third parties, opening the door to a wave of potential lawsuits. This article discusses the doctrine of selective waiver, which allows a company to disclose privileged information to the government without waiving the privilege as to third parties. Some case law, including some recent district court opinions, supports the notion of selective waiver, at least in circumstances where the privileged information has been disclosed pursuant to an appropriately crafted confidentiality agreement. The majority view, however, is that once privileged information is disclosed to anyone, the privilege is lost and waiver therefore occurs with respect to all third parties, irrespective of whether a confidentiality agreement exists. Recognizing the conundrum posed by this unsettled area of law, the SEC recently has proposed