Local reaction to revision of Thompson Memo.

• Author: Ziemer, David

Byline: David Ziemer

Attorney Nathan A. Fishbach, who practices white-collar criminal law at Whyte, Hirschboeck Dudek, SC, in Milwaukee, emphasized that it was important to distinguish between two types of categories of documents covered by the memo. The first category relates to factual matters, and such documents can be requested by the government, but it must use the least intrusive means to obtain them. If the government can obtain such documents otherwise, it must do that instead. Furthermore, the request still must be submitted to main Justice in Washington, to ensure consistency in how the requests are handled. Where a corporation refuses to waive its privilege with respect to this category of documents, the refusal can still be considered a lack of cooperation by the corporation. The second category relates to legal advice. The only way the government can obtain a waiver of the work product privilege is if it gets approval from the Deputy Attorney General. Fishbach said this procedure suggests that such approval will be rarely given, analogizing it to the approval need to obtain a Title III wiretap. "The memo indicates that approval will only be given in exceptional circumstances," Fishbach said during an interview. A refusal to waive immunity cannot be considered a lack of cooperation, Fishbach said, when it comes to...