The McNulty Memorandum categorizes information into Category I and Category II materials. Despite the characterization of Category I materials as “purely factual information” related to the alleged misconduct, this may not really be the case. For example, interview memoranda are typically core work product as they reflect the mental impressions and judgment of counsel. The threat of disclosure of this type of exempt work product information has an adverse effect on the proper functioning of our judicial system. It will have a potential chilling effect on witnesses and on lawyers conducting internal investigations as counsel may not explore certain areas or at least not a deeply. Alternatively, counsel may not reduce to writing particularly sensitive material for fear it may ultimately be disclosed to the government. Even if counsel does detail the sensitive information, counsel may be tempted do so in more cryptic, handwritten notes, rather than a typed interview memorandum. All of these will impede a corporation’s ability to do a candid and complete internal investigation.
As a comfort, the McNulty Memorandum directs that “Category II information should only be sought in rare circumstances.” McNulty Memorandum, at 10. Category II information is at the heart of the attorney-client privilege and the attorney work-product exemption. Disclosure of Category II information will undoubtedly chill communications between an attorney and the client. It can also serve as a huge disincentive for the corporation to engage in its own investigative fact-finding mission. Nonetheless, the McNulty Memorandum provides an exception that could threaten to swallow the rule. Companies that “voluntarily” waive privilege are not subject to the approval process. Voluntary waivers are favored by the DOJ. Could informal signals from a prosecutor induce a “voluntary” waiver without the initiation of the formal approval process?
More later.
As always, feel free to give me a call or e-mail me at walter.james@jamespllc.com
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