Selective waiver would permit an organization to produce privileged material to a government agency during an investigation while maintaining privilege against private litigants.
Most federal circuits have rejected the doctrine.
Alternative Names:
Limited Waiver, Partial Waiver
Why it Matters?
The rejection of selective waiver creates a genuine dilemma in parallel proceedings, since cooperating with a regulator by producing an internal investigation typically waives privilege as to the civil plaintiffs who follow. Organizations facing that choice sometimes negotiate confidentiality agreements with the agency, though most courts have held those do not preserve privilege either. The decision to produce should account for the civil consequences from the outset.
Frequently Confused with
Related terms
Frequently asked questions
Is selective waiver recognized?
Do confidentiality agreements with agencies help?
