SEC Procedure for Waiver of Privilege
The SEC enforcement manual, dated October 6, 2008, now states that the staff should not ask a party to waive the attorney-client or work product privileges when investigating potential securities laws violations.
As previously discussed here, the Department of Justice adopted a similar procedure in September to change its must-criticized policy of labeling companies uncooperative if they refused to waive privilege.
The SEC enforcement manual specifically says that a party’s decision to assert a legitimate privilege will not negatively affect whether they receive credit for cooperation. However, the manual does not address whether waiving privilege could positively affect cooperation in the eyes of the SEC. Congress continues to consider the idea of legislatively prohibiting attaching any weight to a waiver of privilege when making SEC enforcement decisions.
