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Protecting Privilege: Bill Would Better Shield Attorney Communications

To read about Costco's discovery dispute over a memo from outside counsel, click here.

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Rep. Robert Scott, D-Va., re-introduced the Attorney Client Privilege Protection Act in the U.S. House in February 2009. The Act would bolster protections for attorney communications in civil and criminal enforcement actions by statutorily prohibiting federal prosecutors from requesting waiver of attorney-client privilege and attorney work product protections in corporate investigations.

An earlier version of the bill passed the House in November 2007, but the bill has yet to make it out of Senate committees. The latest version of the bill has been referred to the House Judiciary Committee, chaired by Michigan Democrat John Conyers. The bill has six co-sponsors.

Sen. Arlen Specter, D-Pa., the bill's original proponent, introduced an identical bill in the Senate in February 2009. That bill remains in the Senate Judiciary Committee. Revised federal prosecutorial guidelines issued in 2008--called the "McNulty Memo"--slowed progress on the bill. The McNulty Memo signaled that the Justice Department would back off its aggressive stance on demanding privilege waivers.

Adele Nicholas

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