Recently, both the attorney–client and work product privileges have come under assault by the U.S. government.  After well-known corporate failures, the Department of Justice and other agencies began to pressure corporations to waive these privileges, leading to a “culture of waiver” where government agencies implicitly require corporations to waive their privileges and cooperate in investigations or make it difficult for them not to waive their privileges.  This forced waiver infringes on corporations’ rights to keep information confidential under both privileges and exposes corporations to civil liability to third parties.

One solution that has been proposed is “selective waiver”—a doctrine that allows entities to provide the government privileged information but allows them to reserve the privileges as to third parties.  Building on this situation, this Note provides a brief background on both the attorney–client and work product privileges; discusses the culture of waiver (especially at the Department of Justice) and its history; surveys the state of the case law in each federal circuit that has addressed the issue of selective wavier; argues that the federal courts are unlikely to provide a solution to the problem; demonstrates that selective waiver alone is not an adequate solution to the problem of forced waiver because it does not advance the purposes of either privilege; and proposes a better solution—a law that forbids government agencies from requesting privileged materials from corporations in combination with an amendment to the Federal Rules of Evidence allowing for selective waiver.  The Note explains that this combination would allow corporations to reveal privileged information to the government if they choose without fear of third party opportunism while still providing the utmost protection for both privileges.