Under the McNulty Memorandum, prosecutors do not need authorization from superiors if the corporation voluntarily provides privileged documents. Id. at 11. The only McNulty Memorandum requirement regarding “voluntary waivers” is that the voluntary waiver must be reported to either the United States Attorney or the Assistant Attorney General in the appropriate division. Id. In fact, it is the opinion of some
On a topic that is no surprise to practitioners, the Associated Press reports that the USEPA is in violation of the Pollution Prosecution Act (“PPA”). Why? Because the PPA requires the USEPA to employ at least 200 criminal investigators (gun toting, badge carrying agents). According to the article, there are currently only 174 criminal investigators. You can see the article at
On Monday, July 23, 2007, DOJ announced that the Greek-based shipping company Kassian Maritime Navigation Agency Ltd. (“Kassian”) pleaded guilty to maintaining a false record pertaining to the illegal dumping of bilge and wastewater into the ocean from the M/V North Princess. Under the terms of the plea agreement, Kassian will pay
The McNulty Memorandum creates two categories of information that the government can request from the corporation under investigation based on the government’s need; Category I and Category II information.
Category I: Category I information includes “purely factual information.” Id. The information
The McNulty Memorandum does change the privilege waiver world. The McNulty Memorandum makes it clear that the waiver of the attorney-client privilege and the work-product exemption is not necessarily a prerequisite for cooperation. McNulty Memorandum, at 8. Under the McNulty Memorandum, prosecutors can only request the corporation waive its attorney-client privilege and its work-product exemption “when there is a
Apparently in response to the assaults on the Thompson Memorandum, the DOJ reconsidered its policies. The McNulty Memorandum appears to be a strategic response by the DOJ to the fire storm of criticism and appears to be a tactical retreat by the DOJ in the face of the broad push-back/criticism against the DOJ’s attack on attorney-client privilege, attorney work-product, and the legitimate payment of employees’ attorneys’ fees. The retreat is a retreat only as far as is
In addition to the fire storm of criticism of these policies, several other developments put the final nails in the Thompson Memorandum coffin and may have motivated the DOJ to issue the McNulty Memorandum.
The Sentencing Commission, after considering concerns voiced by the defense bar, and after
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