All Privileges Are Not Created Equal

Waiver of privilege, especially of executive privilege, has been in the news.  Some Congressional committees are requesting testimony from former White House staff members related to the report issued by Special Counsel Robert Mueller.  The Trump administration is claiming they cannot testify due to executive privilege; moreover, the administration claims their statements to Mr. Mueller and his staff (the “Special Counsel”) during the investigation did not waive executive privilege beyond the statements made to the Special Counsel.

Narrow Waiver for Executive Privilege

The few cases dealing with executive privilege waiver come from both Republican and Democratic administrations; they suggest waiver in the context of executive privilege is much narrower than, for example, waiver in the attorney-client context.  As pointed out in a post of the excellent blog “Presnell on Privileges,” https://presnellonprivileges.com/2019/04/29/did-trump-waive-executive-privilege-over-mcgahns-congressional-testimony/#more-3811, waiver of executive privilege is limited to the document or information specifically released.  Thus, the Trump administration may have a good argument it can preclude former White House Counsel Don McGahn from testifying before Congress even though the administration allowed him to be interviewed at length by the Special Counsel.

Baylor Case: Much Broader Waiver Doctrine

Those not working in a presidential administration should expect a much broader waiver doctrine.  A good example comes from the Baylor University litigation related to sexual harassment.  Baylor’s Board of Regents hired the law firm Pepper Hamilton to investigate Baylor’s procedures, policies and other “institutional response” aspects of Baylor’s compliance obligations.  Baylor and Pepper Hamilton agreed that all material prepared and communications made by Baylor and the law firm in the course of Pepper Hamilton’s review would be privileged. 

Persons suing Baylor requested access to a report prepared by Pepper Hamilton as well as the materials, communications, and information provided to Pepper Hamilton.  In ruling on the request, the Court stated Baylor engaged Pepper Hamilton in order to better understand Baylor’s legal obligations and liabilities, so that communications between Baylor and Pepper Hamilton were generally privileged.  However, Baylor’s repeated public statements, which released the findings and conclusions in Pepper Hamilton’s report, although not intended to waive the privilege, did indeed waive the privilege as to the report and to the materials, communications, and information provided to Pepper Hamilton as part of the investigation.  The Court relied on the doctrine that disclosure of any significant part of a confidential communication waives the privilege as to all of the communication. 

It appears waiver, as applied to attorney-client communications, is much broader than waiver when applied to executive privilege.  Persons not part of the executive branch should expect any release of privileged communications will waive the privilege not only to what was released but to all related communications or all communications of the same subject matter.

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