Selective Waiver of Privilege Rejected Again

The 9th Circuit recently joined the group of federal circuit courts rejecting selective waiver of privilege. The opinion is analyzed in depth by Paul Hastings. Key excerpts are:

"On April 17, 2012, the United States Court of Appeals for the Ninth Circuit issued its decision in In re Pacific Pictures Corp., No. 11-71844, ___ F.3d ___, 2012 WL 1293534 (9th Cir. Apr. 17, 2012), holding that a party waives attorney-client privilege in any future litigation by voluntarily disclosing privileged documents to the federal government. In issuing this decision, the Ninth Circuit resolved a critical issue for entities facing agency investigations and joined the majority of other circuits in rejecting the theory of "selective waiver."

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The case reached the Ninth Circuit when Petitioners sought a writ of mandamus overturning the magistrate’s order. Petitioners argued that disclosure of documents to the government, as opposed to a civil litigant, does not waive privilege as to the world at large. In doing so, Petitioners squarely presented an issue the Ninth Circuit had deferred addressing on two prior occasions:1 whether to adopt the theory of "selective waiver" accepted by the Eighth Circuit in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1978), but rejected by every circuit to consider the issue since. See In re Qwest Commc’ns Int’l, 450 F.3d 1179, 1197 (10th Cir. 2006); Burden–Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003); In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 295 (6th Cir. 2002); United States v. Mass. Inst. of Tech., 129 F.3d 681, 686 (1st Cir. 1997); Genentech, Inc. v. United States Int’l Trade Comm’n, 122 F.3d 1409, 1416–18 (Fed. Cir. 1997); In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir. 1993); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1425 (3d Cir. 1991); In re Martin Marietta Corp., 856 F.2d 619, 623–24 (4th Cir. 1988); Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C. Cir. 1981)."

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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