Waiting for Superman: The Ninth Circuit Finally Weighs in on the Selective Waiver Doctrine

On April 17, 2012, the U.S. Court of Appeals for the Ninth Circuit held in In re Pacific Pictures Corporation, that “a party waives attorney-client privilege forever by voluntarily producing privileged documents to the federal government.” 2012 WL 1293534 at *1 (9th Cir. 2012). In doing so, the Ninth Circuit joined the majority of other circuits in rejecting the selective waiver of attorney-client privilege.

History of Selective Waiver
The theory of selective waiver provides that a party’s voluntary disclosure of privileged materials to the government does not necessarily waive the privilege in civil litigation. The purpose of the rule is to encourage voluntary cooperation with government investigations.

The theory was first adopted by the Eighth Circuit in Diversified Industries Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1978) (en banc). Since then, however, every other circuit to consider the theory has rejected it. See In re Qwest Commc’ns Int’l, 450 F.3d 1179, 1197 (10th Cir.2006); Burden–Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003); In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 295 (6th Cir. 2002); United States v. Mass. Inst. of Tech., 129 F.3d 681, 686 (1st Cir. 1997); Genentech, Inc. v. United States Int’l Trade Comm’n, 122 F.3d 1409, 1416–18 (Fed.Cir. 1997); In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir. 1993); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1425 (3d Cir. 1991); In re Martin Marietta Corp., 856 F.2d 619, 623–24 (4th Cir.1988); Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C.Cir. 1981). Before In re Pacific, the Ninth Circuit twice deferred judgment on the issue, leaving it an open question as to whether the court would accept a theory of selective waiver. See United States v. Bergonzi, 403 F.3d 1048, 1050 (9th Cir. 2005) (per curiam); Bittaker v. Woodford, 331 F.3d 715, 720...