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Authors

Andrew Gilman

Abstract

This Note analyzes the Privilege Protection Act, focusing on how it might change corporate white-collar prosecutions. Part I of this Note explores the mechanics of the corporate privilege, the development of the DOJ's waiver policy, and the structure of the Privilege Protection Act. Part II addresses the conflicting views on whether the Privilege Protection Act will bolster corporate attorney-client privilege, provide for the effective and efficient prosecution of white-collar crime, and promote ethical prosecutorial practices. Finally, Part III argues that the Privilege Protection Act is a misguided attempt to correct a greater systemic problem with the corporate attorney-client privilege and the nature of corporate cooperation. If Congress is to act, it should recognize the essential role privilege waiver plays in prosecuting white-collar crime, and should move to limit the deleterious ramifications to corporations of routine privilege waivers. Thus, the doctrine of selective waiver would be a preferable remedy: it would protect the confidentiality of privileged documents that the corporation discloses to the government, and would provide an effective means to balance the corporation's interest in cooperating with the government and avoiding unwarranted civil liability.

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