10th Circuit Declines to Adopt a Rule of “Selective Waiver” which would Allow Production of Work Product and Privileged Documents to Investigators Without Waiving Further Protection

In re Qwest Communications Int’l, Inc., 2006 WL 1668246 (10th Cir. June 19, 2006)

In this mandamus action, Qwest Communications International, Inc. presented an issue of first impression in the 10th Circuit, namely, whether Qwest waived the attorney-client privilege and work-product doctrine, as to third-party civil litigants, by releasing privileged materials to federal agencies in the course of the agencies’ investigation of Qwest. Qwest urged the appellate court to adopt a rule of “selective waiver” or “limited waiver” which would allow production of attorney-client privileged and work-product documents to the United States Department of Justice and the Securities and Exchange Commission without waiver of further protection for those materials. The court held that the district court did not abuse its discretion in declining to apply selective waiver and denied Qwest’s petition for a writ of mandamus.

Finding the record inadequate to justify the relief sought by Qwest, the court stated:

Generally it is the nature of the common law to move slowly and by accretion; swift and massive movements are not impossible, but they are relatively rare. Justice Cardozo described the common law’s modification process as “gradual. It goes on inch by inch. Its effects must be measured by decades and even centuries. Thus measured, they are seen to have behind them the power and the pressure of the moving glacier.” Benjamin N. Cardozo, The Nature of the Judicial Process 24 (1921). The common law’s methodology has been identified as both its strength and its weakness:

[I]ts strength is derived from the manner in which it has been forged from actual experience by the hammer and anvil of litigation, and … its weakness lies in the fact that law guided by precedent which has grown out of one type of experience can only slowly and with difficulty be adapted to new types which the changing scene may bring.

Harlan F. Stone, The Common Law in the United States, 50 Harv. L.Rev. 4, 7 (1936); see also Richard B. Cappalli, The American Common Law Method 15 (1997) (stating that “[t]he accretional nature of the common law is a great strength”).

Keeping these precepts in mind, and having considered the purposes behind the attorney-client privilege and the work-product doctrine as well as the reasoned opinions of the other circuits, we conclude the record in this case is not sufficient to justify adoption of a selective waiver doctrine as an exception to the general rules of waiver upon disclosure of protected material. Qwest advocates a rule that would preserve the protection of materials disclosed to federal agencies under agreements which purport to maintain the attorney-client privilege and work-product protection but do little to limit further disclosure by the government. The record does not establish a need for a rule of selective waiver to assure cooperation with law enforcement, to further the purposes of the attorney-client privilege or work-product doctrine, or to avoid unfairness to the disclosing party. Rather than a mere exception to the general rules of waiver, one could argue that Qwest seeks the substantial equivalent of an entirely new privilege, i.e., a government-investigation privilege. Regardless of characterization, however, the rule Qwest advocates would be a leap, not a natural, incremental next step in the common law development of privileges and protections. On this record, “[w]e are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination.” Branzburg v. Hayes, 408 U.S. 665, 703 (1972).

The court commented that the Advisory Committee on Evidence Rules recently voted to recommend publication of a proposed Rule 502, providing for selective waiver to the Committee on Rules of Practice and Procedure (the Standing Committee) of the Judicial Conference of the United States. It noted that the Standing Committee is expected to take up the issue at its June 2006 meeting.

The court further explained:

Rule 501 places responsibility for development of the common law of testimonial privilege on the federal courts. Each decision along the path of the common law is directed by the discrete, underlying facts developed in the record. As decisions accrue, the process is facilitated by the accumulation of experience, but it remains dependent on the factual foundation of each constituent decision. Legislative and rule-making processes, however, are not confined by the same gradual, brick-by-brick progression. Legislatures and rule-making bodies are endowed with tools to marshal evidence, facts, and experience from numerous and diverse sources that can support more dramatic and immediate creation of new rules or modifications of old rules. Cf. In re Subpoena Duces Tecum, 738 F.2d at 1375 (“If a change is to be made because it is thought that such voluntary disclosure programs are so important that they deserve special treatment, that is a policy matter for the Congress, or perhaps through the SEC (through a regulation). Courts are not the appropriate forum – for one thing, courts do not know enough – to decide on policy grounds to treat those programs (or others like them) in an exceptional way.”); see also Branzburg, 408 U.S. at 706 (“Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate.”).

Whether a rule-making or legislative venue is appropriate to address the issues raised by Qwest and amici is a question for the Standing Committee and Congress. The rule-making and legislative processes, however, need not proceed wholly independent of the common law. The accumulated experience of federal common law in the area of attorney-client privilege and work-product protection is but another source for the legislative and rule-making bodies to draw on to inform their deliberations concerning the need for and parameters of selective waiver or a new privilege.

A copy of the full opinion is available here.