Several interesting cases this year involve waiver and privilege
jurisprudence. Perhaps none more sharply underscores the importance
of a well-written proffer agreement when making disclosures to the
government than a decision by the Fourth Circuit. The
court's analysis depends in part on the operation of Fed. R.
Evid. 502.
Background
Rule 502 governs — and limits — the scope of
any waiver of the attorney-client privilege and work product
protection when a party makes a disclosure in a federal proceeding
or to a federal office or agency. The matter stems from a
government investigation into whether a company and its
subsidiaries violated certain federal laws. The
company and the government entered into several agreements
permitting employees of the company to share information that would
otherwise be protected by the attorney-client privilege and work
product protection.
