Commercial Litigation and Arbitration

Privilege Waiver by Production to Congress Pursuant to Subpoena

‛The courts are split whether production of documents to Congress waives the attorney-client privilege and work-product protection for those documents,“ District Judge James O. Browning writes in Anaya v CBS Broadcasting, Inc., 2007 U.S. Dist. LEXIS 55164 (D. N.M. April 30, 2007). After citing numerous cases holding that production to Congress pursuant to subpoena does not effect a waiver of privilege or work product, the Anaya Court looked more favorably at recent authorities holding document possessors to a higher standard. The Court held that the subpoenaed person must show that some serious effort was made to convince the Chair or the Congressional Committee issuing the subpoena to recognize the privilege or work product claims being asserted. In Anaya, the documents were in the possession of former defendants who had not protested or attempted to contest the Congressional document subpoena. Therefore, Judge Browning held that he ‛need not decide, as some courts have, that to preserve the attorney-client privilege and/or the work-product protection, a party resisting discovery must go to the point of risking contempt of Congress.“ Held, attorney-client privilege and work product protection waived.

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