Many boards and executives of corporations subject to criminal and civil regulatory investigations have grappled with the highly charged decision of whether to provide the government with privileged communications and attorney work product. By providing the government with information that is protected by either the attorney-client privilege or attorney work product doctrine, the corporation hopes to receive credit for cooperating with the government and thereby avoid criminal prosecution or civil regulatory action. However, there may be significant downstream consequences for the corporation choosing to disclose privileged information to the government. In particular, providing the government with privileged information could seriously imperil any later attempt to reassert privilege as to other parties, including civil litigants who are seeking to recover monetary damages from the corporation. That risk, in turn, needs to be offset against the potential impact on civil litigation – including rights to insurance and indemnification – of criminal or regulatory charges against the corporation.
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