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  • Writer's pictureKirk Hartley

Public Entity Waiver (or Not) of Privilege After Announcing the Outcome of a Post-Incident Investiga

For better or worse, opinions from lawyers are now tightly woven into management of government agencies and private businesses. Indeed, opinions of lawyers are frequently cited to justify dubious behavior. For a recent, famous example, consider the massive AIG bonuses paid on the rational that non-payment might cause breach of contract claims. That pathetic explanation was nicely skewered in this New York Times opinion article by Lawrence A. Cunningham, a law professor at George Washington University School of Law.

In that light, the American Bar Association Journal recently highlighted a March 2011 opinion on the extent of privilege waivers arising from a township publicly trumpeting an investigation’s exculpatory conclusion after a police shooting. In Sullivan v. Warminster Township, the district court applied mainly Third Circuit law and found only limited waiver. It’s a brief but interesting opinion, and includes useful citations to cases involving government agencies. The ABA article quotes some ABA discovery committee members who think the opinion is flawed.

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