DOJ Guidelines For Prosecuting Corporate Fraud: Prosecutors Prohibited From Requesting Attorney-Client Privileged Information

On August 28, 2008 the Department of Justice (DOJ) issued revised guidelines that govern the investigation and prosecution of corporate crimes. Among other things, the revised guidelines prohibit federal prosecutors from requesting that corporations disclose attorney-client privileged information or work product, or from considering whether a corporation has waived its privilege when evaluating the corporation's level of cooperation. As part of DOJ's policy, corporations are given credit based on their cooperation during the course of an investigation. Prior to the adoption of the revised guidelines, many argued that prosecutors had coerced corporations into waiving attorney-client privilege and work product protection in exchange for this cooperation credit and that these waivers could have prevented candid communications between corporations and their legal counsel. In addition, under certain circumstances the previous guidelines allowed federal prosecutors to request