US Ninth Circuit Rejects “Selective Waiver” of the Attorney-Client Privilege

April 25, 2012
In In re Pacific Pictures Corporation, the Ninth Circuit joined a long list of courts that have rejected the so-called “selective waiver” theory of privilege. The court’s broad reasoning makes clear that any voluntary disclosure of privileged material to the government likely will result in a waiver of the privilege as to anyone — even if the disclosure is pursuant to a subpoena, and the government has agreed to keep the information confidential. This update examines the Pacific Pictures decision, which underscores the need for counsel to carefully balance the benefits from disclosure against the costs of a privilege waiver.