The Department of Justice ("DOJ") has once again
scaled back the tactics it employs investigating and prosecuting
corporations. The policy changes announced last week by DOJ are the
latest in the department's steady retreat from using waiver of
the attorney-client privilege and work product protection as
evidence of a company's cooperation with the government.
Beginning with the Thompson Memorandum in 2003,* DOJ revised its
Principles of Federal Prosecution of Business
Organizations to define the factors investigators are to
consider when determining whether to charge a corporation with
wrongdoing. Many of the factors bear upon the level of
"cooperation" shown by a corporation during the
investigation, including (1) the corporation's willingness to
waive the attorney-client privilege and work product protections,
(2) the corporation's willingness to give virtually unfettered
access to company employees and other witnesses, and (3) the
corporation's willingness to
