To Preserve Privilege, Shun Voluntary Disclosure

Law360, New York (May 21, 2008, 12:00 AM EDT) -- If outside counsel for a company drafts factual memoranda concerning an internal investigation conducted in response to alleged wrongdoing, and then voluntarily shares the memoranda at the company's direction with government investigators, has the company waived the work product privilege?

According to a recent decision from a federal district court in New York, the answer is yes. See In re Initial Public Offering Securities Litigation, 2008 WL 400933 (S.D.N.Y. Feb. 14, 2008).

After receiving a subpoena from the U.S. attorney regarding alleged misconduct related to the...
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