Efforts To Protect Privilege Falling Short

The National Law Journal recently published Efforts To Protect Privilege Falling Short, an analysis of the effectiveness of the so-called McNulty Memorandum, which is designed to curb misconduct by prosecutors seeking privileged information from companies during corporate investigations. The article describes a report on the issue recently produced by former Delaware Chief Justice E. Norman Veasey, now a senior partner at Weil, Gotshal & Manges LLP, for the Senate Judiciary Committee.

Serving pro bono as a “neutral narrator” at the request of the Coalition to Protect the Attorney-Client Privilege, the former Chief Justice spoke personally with defense counsel about the progress made by the Justice Department and other government agencies since the McNulty Memorandum was issued. According to the article, many respondents reported progress by the government, but those presenting post-McNulty information expressed doubts about the effectiveness of the Memorandum in curbing the practices it was intended to address.

Respondents reported a range of experiences with prosecutors. In some cases, according to the article, respondents said that prosecutors claimed not to know about the existence of the Memorandum–and sometimes attempted to avoid the Memorandum’s reporting requirements by pressuring defense counsel.

The full article is available here.