TURNING OUT THE "LIGHT OF REASON AND EXPERIENCE": THE SELECTIVE WAIVER DOCTRINE AND PROPOSED FEDERAL RULE OF EVIDENCE 502

St. John's Law Review, Fall 2007 by Lambert, Michelle

The doctrine may be masked as a simple exception to the rule of waiver of the attorney-client privilege, but in fact, the doctrine creates a new privilege between the government and corporations.151 The purpose of the selective waiver doctrine goes beyond the intended purpose of the attorney-client privilege and does not model any prior justifications or exceptions to the waiver rule of the privilege.152 Therefore, the selective waiver doctrine in effect creates a new government-investigatory privilege.153

B. A Government-Investigatory Privilege Lacks Justification

The selective waiver doctrine cannot stand as a separate government-investigatory privilege. It cannot be justified by either the instrumental theory or the privacy rationale.154 The instrumental theory relies on a "but-for" causation between the privilege and the ensuing relationship.155 Yet, a relationship between a corporation and the government is not necessarily based on the existence of the privilege.156 In fact, the government inserts itself daily into the practices of corporations by other means and has created agencies such as the sec for this purpose.157 Therefore, the government's present involvement with corporations already creates a type of relationship that does not need the judicial aid of a privilege.

In addition, the privacy rationale cannot support a government-investigatory privilege.158 Corporations do not need privacy to "consult" with the government because the corporations regularly comply with requests from the government.159 Furthermore, the government does not have the societal fear of sanctions or public outcry due to its "advice" given to any corporation.160 In fact, the government's necessity of "privacy" from the public would oppose the very public foundation the government is built upon.161 Therefore, the privacy argument must also fail.

Some argue that the selective waiver doctrine would promote further cooperation by corporations with the government, thereby creating an even more "open" relationship.162 This argument lacks reason. First, it bases a doctrine cloaked as an exception to the waiver rule of the attorney-client privilege on the government-corporation relationship rather than the attorney-client. Second, it ignores the fact that corporations currently provide thousands of privileged documents to the government with prior knowledge that they are waiving the privilege as to those documents.163 Due to government incentives for cooperation by private entities, corporations seek to cooperate with the government.164 Although some may view this as "involuntary cooperation,"165 the selective waiver doctrine is not a viable alternative. The government should not be allowed to aid the cover-up of possibly criminal or civil wrongdoing by corporations via use of a government-investigatory privilege that could lead other litigants to justice.166

In addition, a government-investigatory privilege would fail the same judicial scrutiny used to examine new privileges. In Jaffee v. Redmond,161 the Supreme Court analyzed the elements required to recognize the psychotherapist-patient privilege as a new privilege.168 The Court stated that the relationship between the psychotherapist and patient depended upon trust and confidentiality.169 In contrast, a government-investigatory privilege would hardly instill trust in a relationship between the government and corporations. Since the government would not be prevented from prosecuting corporations because of their disclosed criminal wrongdoings, a remarkably reduced level of "trust" would occur in a government-corporation relationship than like the psychotherapist-patient relationship in Jaffee.170