The U.S. Department of Justice will no longer allow its prosecutors to pressure corporate executives to disclose privileged documents. The much-criticized current policy had been to label companies uncooperative if they failed to reveal documents and communications that fall under the attorney-client privilege. The DOJ has revised the policy effective immediately.
Furthermore, theDOJ can no longer demand “non-factual” attorney work product and is not permitted to consider whether a company pays its attorney fees in advance or how a company disciplines employees when deciding whether the company is cooperating with an investigation. The DOJ has described the new policy by saying that refusal to cooperate by a corporation with an investigation is not evidence of guilt.
The SEC is not bound by the new rules; however, a bill being considered by the U.S. Senate would change that. Currently, the SEC recommends that companies under investigation share the results of internal investigations with the SEC even if such reports are privileged.