By Michelle Lambert
The current Federal Rules of Evidence state that common law
controls privileges. The attorney-client privilege allows clients
to communicate with their attorneys with confidence that these
communications will not later be admissible in judicial
proceedings. As a result, the judiciary has strictly and
narrowly construed the privilege to minimize the exclusion of
relevant testimony at trial. Almost always if the attorney or
client later discloses a privileged communication to a third party,
the privilege is waived and the communication is no longer
protected from disclosure in future litigation. Yet, one
circuit court of appeals allowed the attorney-client privilege to
apply to communications that had been divulged to the government
during an investigation.
This piece examines the selective waiver doctrine and its
controversial inclusion in proposed Federal Rule of Evidence
502. The author compares the selective waiver doctrine with
the attorney-client privilege in justification, purpose, and
execution. These comparisons demonstrate that not only does
the selective waiver doctrine fail to display any similarities to
elements of the attorney-client privilege, the doctrine creates an
entirely new government-investigatory privilege. And when
compared to other privileges, the author concludes that judicial
recognition of a government-investigatory privilege would not
stand. Finally, this piece discusses the controversial
inclusion of the selective waiver doctrine in a proposed Federal
Rule of Evidence—which defies the judgment of every circuit court
of appeals except for one–even though the Federal Rules mandate
that the judiciary controls the law of privileges.