Deputy Attorney General David Ogden said the Obama DOJ would continue a policy of giving corporations credit for cooperation in criminal investigations based on the information they share with prosecutors, not whether they agree to waive attorney-client privilege.
Ogden’s remarks came in a speech Thursday at Washington’s Mayflower Hotel at a conference hosted by Compliance Week magazine. View the speech here. Ogden affirmed the Justice Department’s adherence to the August 2008 “Filip Memo,” written by Ogden’s predecessor, then-DAG Mark Filip and incorporated into the U.S. Attorney’s manual.
The Filip memo said prosecutors could no longer pressure companies to waive attorney-client privilege in order to receive credit for cooperating in an investigation. The practice had caused an uproar in general counsel and other corporate offices. Members of Congress had vowed to change the law if the DOJ didn’t act. View the DOJ’s corporate charging guidelines here.
Ogden said in his speech:
These changes were made, in part, to address concerns voiced by the members of the bench, the defense bar, and Congress about how prior versions of the guidelines had been applied – or misapplied – by federal prosecutors around the country. Chief among these concerns was the belief that under the prior guidelines, corporations, as a practical matter, were required to waive the attorney-client privilege and/or attorney work-product protection in order to receive cooperation credit by federal prosecutors. We have now made clear that nothing could be further from the truth: cooperation is properly measured by a full and complete sharing of information – not whether the corporation disclosed attorney-client or work-product materials.