USA Law and Practice Contributed by: Robert Houck, William Lavery, Joseph Ostoyich and Leigh Oliver, Clifford Chance US
as in a compliance or internal audit role – is gathering facts at the direction of an attorney for the purpose of facilitating the attorney’s provision of legal advice to the company. Limitations (and Exceptions to Those Limitations) on the Scope of Privilege There are some important limitations on the scope of the privilege protection. For example, only the sub - stance of legal advice (or of a request for advice) is protected. The fact of an attorney-client communica - tion is not protected, nor are pre-existing non-priv - ileged materials protected simply because they are shared between an attorney and a client. In addition, a party generally waives privilege protection by failing to maintain the confidentiality of legal advice, includ - ing by sharing that advice with third parties. There is no exception to this waiver for voluntary disclosure of privileged communications to the government (though, importantly, the US antitrust authorities do not demand that an investigative target hand over privileged materials to be seen as co-operative in a government investigation). The privilege also does not protect attorney-client communications made for the purpose of committing or furthering a crime or fraud ( United States v Zolin , 491 US 554 [1989]). The “common interest” protection – an exception to the rule that sharing legal advice with third parties results in a privilege waiver – safeguards against the compelled disclosure of communications between parties and their respective counsel when aligned in a common legal interest. Federal appeals courts disa - gree as to whether the common interest protection is limited to communications between parties when threatened by litigation; a number of appeals courts recognise that the privilege applies to the “full range of communications otherwise protected by the attorney- client privilege” without regard to whether litigation is threatened ( United States v BDO Seidman , 492 F 3d 806 [7th Cir 2007] [agreeing with at least five sis - ter circuits that the threat of litigation is not required for the common interest protection to apply]; but see Santa Fe Int’l , 272 F 3d 705 [5th Cir 2001] [find - ing that the protection only applies where there is the threat of litigation]). In federal antitrust litigation, co- defendants regularly invoke the common interest pro - tection to share materials and collaborate on defence
strategy. Frequently, co-defendants will sign a joint defence agreement formalising that arrangement (but this step is not strictly required for the common inter - est protection to apply). A related protection arises under the “work product” doctrine, which shields from disclosure materials “pre - pared in anticipation of litigation” (Fed R Civ P 26[b] [3]). It protects both “documents and tangible things” and the “mental impressions, conclusions, opinions or legal theories of a party’s attorney”. The work product doctrine is not an absolute bar to compulsory disclo - sure of qualifying materials. Rather, an adversary may ask the court to compel disclosure of work product by showing that the requesting party has a “substantial need” for the materials in order to prepare its case and that the party cannot, without “undue hardship”, obtain through other means the “substantial equiva - lent” of the requested materials (Fed R Civ P 26[b][3] [A]). In practical terms, however, this standard is very challenging to meet. 6.3 Leniency and Settlement Agreements As described in 2.3 Impact of Competition Authori - ties , agreements to settle most forms of enforcement proceedings by the US federal antitrust authorities are typically made public in the course of a federal court’s review of the proposed resolution. One exception to this general rule is for parties who qualify for leniency pursuant to the Department of Justice, Antitrust Divi - sion’s Corporate Leniency Policy. The Leniency Pro - gram, a centrepiece of the Division’s criminal cartel enforcement efforts for more than 25 years, accords immunity from criminal antitrust prosecution to cor - porations that report their role in a per se antitrust violation at an early stage and meet certain other con - ditions, including co-operating fully with the Division’s prosecutions of co-conspirators and making restitu - tion to injured parties. To encourage applicants to come forward, the Divi - sion’s policy is to treat as confidential the identity of leniency applicants and the materials they provide. The Division acknowledges that it will disclose the identity of a leniency applicant if ordered to do so by a court, though such an order would be unusual. While at least one appeals court has held that the Division must disclose leniency agreements pursuant
277 CHAMBERS.COM
Powered by FlippingBook