Information shared from internal investigations with the government
Affirmations and waivers of privileges are a hot topic for internal investigations and government proposals. A burning question is whether a party can claim privilege over documents it has provided to the government. A new ruling from the District of New Jersey sheds light on this area. In United States vs. Coburn,1 Judge Kevin McNulty ruled that Cognizant Technology Solutions Corporation’s (Cognizant) disclosure of a summary of findings to the US Department of Justice (DOJ) constituted a material waiver of privilege.2 Although the parameters are not clearly defined, the decision signals that internal and external lawyers must be increasingly attentive to what is produced and shared with the government during presentation sessions. At least, Coburn presents a valuable data point for white-collar lawyers going forward.
Gordon J. Coburn and Steven Schwartz (collectively, the Defendants) submitted multiple subpoenas to two companies, one of which was Cognizant.3 The defendants are accused of violating the Foreign Corrupt Practices Act while employed as president and chief legal officer of Cognizant.4 Summons of the defendants requested, among others, “Documents revealing all statements made by Cognizant employees describing conversations with Schwartz related to this investigation.”5 In so doing, the “claim of the defendants[ed] that Cognizant has waived all privilege regarding the entire subject matter of Cognizant’s internal investigation” by disclosing these privileged documents to the government.6
CLIENT ATTORNEY’S PRIVILEGE AND WAIVER
Once the elements and conditions of solicitor-client privilege have been established,7 these questions often focus on what constitutes a waiver. the Coburn The court said the privilege is lifted “when a client discloses otherwise privileged communications to a third party.”8 Such disclosures are considered waivers because the disclosure of privileged communications to a third party implies that a client would have made the statement to his attorney whether or not the privilege applies.9 In other words, “the fundamental justification for privilege no longer applies”.ten To put the Coburn rule in another way, the privilege can be lifted by disclosure “if such disclosure compromises the underlying purpose”. [the] privilege.”11
But the investigation does not stop there. If the solicitor-client privilege is waived through disclosure to a federal office or agency, a court must determine the scope of that waiver. And the scope of such waiver “extends to undisclosed communication. . . only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information relate to the same subject matter; and (3) they must in all fairness be considered together.12 This is also called object waiver.
COBURN’S TO ANALYSE
Accused in Coburn argued that Cognizant had granted a waiver of the subject matter of “any communication regarding the conduct alleged in the indictment and any material related to Cognizant’s internal investigation” by disclosing a summary of the findings of the investigation at the DOJ.13 The court ruled that this was too broad a characterization, but it “agrees[d] that there was a material waiver.14 From there, the court analyzed whether there had been a waiver, and then the extent of such waiver.
On waiver, the court ruled that Cognizant could not claim privilege over the documents provided to the government. Rather than allowing the threat of litigation to be an excuse or a mitigating circumstance, it is precisely a threat of litigation that “undermines[ed] the goal of [attorney-client privilege]”because handing over documents” to a potential adversary “effectively” destroyed all confidentiality [Cognizant] maybe had.15
Overall, the court held that “Cognizant’s voluntary transfer of documents or disclosure of the fruits of its investigation to the DOJ also involves a waiver of privilege with respect to communications that ‘concern the same subject matter’ and ‘should in fairness be considered together’ with the actual disclosures to the DOJ.16 To more concretely and specifically describe the scope of the waiver, the court broke down three categories of documents or information for which Cognizant waived privilege due to their transmission to the government.
First, the privilege was lifted “as to all memoranda, notes, summaries or other recordings of interviews” given “to the extent that summaries of interviews were transmitted to the government, whether orally or in writing”.17 Essentially, under this decision, if an interview summary was provided to the government, all relevant documents regarding that interview fall within the scope of the waiver.
Second, if the interview summaries “directly convey the content of documents or communications, those underlying documents or communications themselves fall within the scope of the disclaimer.”18 Although the court only mentions documents or communications, this part of the decision implies that any relevant information or material exposed in an interview summary is subject to the scope of any disclaimer.
Third, the waiver reached “documents and communications that have been reviewed and formed part of the basis of any submission, oral or written, to the DOJ in connection with this investigation.”19 This was the broadest part of the court’s decision, as it opened the door to an obligation to produce any information or material relied upon to develop a DOJ presentation. While this obviously extends to formal and recorded information, it does create a scenario where both informal communications (e.g. text messages, social media) and private unrecorded customer conversations relating to the presentation fall within the scope of the presentation. application of the waiver.
It remains to be seen how or if the decision to Coburn will be interpreted or applied by other courts or in other contexts. Still, the ruling underscores that attorneys involved in white-collar investigations must walk a tightrope between helping their clients obtain co-op credit while preventing a broad waiver of privileged documents. As Cognizant has now found, good faith disclosure could inadvertently tear that tightrope and force disclosure of any related information previously covered by solicitor-client privilege.
1 No. 19-CR-00210, 2022 WL 357217 (DNJ February 1, 2022).
2 Identifier. at 7 O’clock.
3 Identifier. to 1.
4 Identifier. to *1 n.1.
5 Identifier. at 6.
6 Identifier. at *
7 The Coburn Court described the declaration of Third Circuit attorney-client privilege and its application by citing In re grand jury investigation, 599 F.2d 1224, 1233 (3d Cir. 1979). For the sake of brevity, we do not address the requirements and standards for establishing solicitor-client privilege.
8 Coburn, 2022 WL 357217, at *4.
9 See Westinghouse Electric. Corp. vs. Republic of the Philippines, 951 F.2d 1414, 1424, 1428 (3rd Cir. 1991).
ten Identifier. at 1424 (internal quotes and quotes omitted).
11 In Chevron Corp.633 F.3d 153, 165 (3d Cir. 2011).
12 Fed. A. Obviously. 502(a) (emphasis added).
13 Coburn2022 WL 357217, at *7.
16 Identifier. (citing Shire LLC v. Anneal Pharms., LLC, No. 11-CV-03781, 2014 WL 1509238, at *6 (DNJ 10 January 2014) (citing Fed. R. Evid. 502(a))).