The availability of common law privileges for witnesses in congressional investigations.

• Author: Bopp, Michael D.

INTRODUCTION I. CONGRESSIONAL INVESTIGATIVE AUTHORITY II. CONGRESSIONAL RECOGNITION OF PRIVILEGES A. Enforcement Power in Investigations B. Privileges 1. Common Law Privileges Ate Not Constitutionally Protected and Thus Do Not Apply to Congress III. ATTORNEY-CLIENT CONFIDENTIALITY A. Although Not Required, Congressional Investigative Committees May Recognize a Legitimate Claim of Attorney-Client Privilege B. Third Parties 1. Functional Equivalent Test 2. Agency Test 3. In re Grand Jury Subpoenas 4. Attorney-Consultants IV. WORK PRODUCT DOCTRINE A. The Work Product Doctrine Protects Materials Prepared in Anticipation of Litigation B. Several Courts Do Not Consider Congressional Investigations To Be Litigation for Purposes of the Work Product Doctrine V. COMMON INTEREST DOCTRINE VI. SELECTIVE WAIVER A. Selective Waiver of the Attorney-Client Privilege and the Work Product Doctrine B. Practical Application of Waiver Principles to Congressional Investigations CONCLUSION INTRODUCTION

The Chairman gaveled the hearing to order. Executives from four companies were set to testify, their lawyers whispering last-minute advice in their ears. Reporters, spectators, and lobbyists filled the hearing room as the Chairman began his opening remarks.

Noting that the Department of Justice (DOJ) also was investigating the alleged misconduct, the Chairman announced that the hearing would bring to light "an immoral practice" and a business culture that valued profit over human safety.

Under investigation by the congressional investigative committee were four companies that sold allegedly defective products to the government, resulting in injuries to government employees. These companies contracted with the government to produce the product and sold it exclusively to government agencies.

News reports suggested the companies might have known about problems with the product before delivery, meaning these injuries might have been preventable. The news reports also indicated that some injured employees planned to sue at least one, and possibly all, of the companies.

For six months, congressional investigators had been preparing for this hearing. For more than a year the companies had been under DOJ investigation. During this time, both the DOJ and the committee had requested tens of thousands of documents, some of which were privileged.

The companies' lawyers all agreed that privileged documents should be withheld from the DOJ. The DOJ in response requested a privilege log detailing which documents had been withheld and the reasons for withholding them but went no further in its request for the documents.

The lawyers for the targeted companies, who had been communicating amongst themselves regarding the investigations, were split when it came to providing privileged documents to a congressional committee. Although some wanted to withhold the documents, others wanted to seek an agreement from the committee that any documents produced would be held by the committee in confidence. The congressional investigators also requested a privilege log.

Outside counsel for the companies had been sharing information relating to the congressional investigation. Subpoenas issued to the four companies by the committee were broad enough to encompass notes and other records of such communications. Although two of the companies wanted to release these documents, the others objected and noted that release by one company would constitute waiver of privilege by the others.

Three weeks after the companies gave the committee their privilege logs, they received a letter from the Chairman threatening contempt of Congress if the companies failed to produce the documents identified in the privilege logs. Noting that "Congress is not required to abide by evidentiary privileges that are part of the judicial system," the Chairman reminded the companies that punishment for contempt of Congress can include jail.

With executives fearing jail time and their lawyers finding little legal precedent to support claims of privilege before Congress, the companies again split over whether to release the documents.

The Chairman gave the companies a date by which he wanted an answer. That date came and went with the companies unable to agree on a course of action. The Chairman responded by scheduling a committee meeting for the purpose of issuing subpoenas to the four companies. The days leading up to the hearing produced a series of newspaper articles and mentions on evening news programs about the investigation and the upcoming committee votes on subpoenas. Although the companies had their supporters among committee members, they knew that the Chairman had the votes to approve the subpoenas and that his support was bipartisan.

On the eve of the committee meeting, the general counsels of the four companies convened a conference call to decide whether to let the committee meeting proceed or produce privileged documents that could then be used against them in future litigation.

This Article examines the choices available to these companies and the consequences of those choices over the course of a high-profile congressional investigation. It is intended to serve as a practical guide to organizations and their attorneys who find themselves in similar situations.

More specifically, the Article first explores (1) the source and extent of congressional investigative authority and (2) the authority and relevant factors investigative committees consider in determining whether to recognize or deny common law privileges. Next, the Article discusses in greater detail the extent of protections available to entities investigated by Congress under (1) the attorney-client privilege, (2) the work product doctrine, and (3) the common interest doctrine. Finally, the Article examines the effect of producing privileged communications and material to congressional investigative committees and the interests companies such as the four introduced above should weigh when they consider how to comply with Congress while endeavoring to preserve confidential information.

1. CONGRESSIONAL INVESTIGATIVE AUTHORITY

   The Constitution grants Congress an implied power of inquiry to inform itself as it makes laws and oversees their execution, and Congress may enforce this power through subpoenas and contempt proceedings. (1) The U.S. Senate and House of Representatives exercise the power of inquiry through standing committees and subcommittees, such as in the example above, or through committees authorized to investigate specific matters. (2)

   A congressional investigation, properly understood, is not equivalent to a routine oversight hearing. An oversight hearing often involves a committee inquiry into the workings of a federal agency, office, or program, or into some other subject area related to existing or potential federal legislation. In such circumstances, as recognized by a 1955 report of the Senate Committee on Rules and Administration examining the rules and conduct of congressional investigations, the witness "is not being investigated. His personal activities and reputation are not directly involved. He does not regard himself as 'on trial' before the committee or the public. He has, in most instances, appeared voluntarily, and is not concerned with his 'rights' before the committee." (3) In contrast, a congressional investigation more closely resembles a trial. Witnesses often are sworn in at the beginning of the hearing, taking an oath with cameras recording the dramatic moment. In this setting, "[t]he witness may begin to think in terms of procedural rights, particularly if his testimony is publicized in the press...." (4)

   Regardless of how rights-conscious a witness may be, however, Congress remains conscious and confident that it may, but is not required to, recognize those witnesses" common law legal privileges. (5) The Supreme Court has not yet addressed this issue, leaving parties subject to congressional investigations without guidance as to the exact scope of protection afforded them under the attorney-client privilege and the work product doctrine. In this uncertain environment, companies and their attorneys must determine whether to acquiesce to committee requests for privileged communications and documents or to invoke privilege and risk contempt.

2. CONGRESSIONAL RECOGNITION OF PRIVILEGES

   1. Enforcement Power in Investigations

      Companies such as the four under investigation in our example should be aware that refusal to comply with the committee's requests for privileged information could have painful consequences. Congress may hold in contempt any witness who fails to comply with a congressional subpoena in the context of an investigation. Like Congress's power of inquiry, its contempt power "is not specifically granted by the Constitution, but it is considered necessary to investigate and legislate effectively." (6) There are three forms of contempt available to Congress: inherent, criminal, and civil. (7)

      The Supreme Court recognized inherent contempt as an inherent congressional power necessary for effective legislation and investigation. (8) Inherent contempt proceedings involve a trial before the full House or Senate and may result in imprisonment, although Congress has not used inherent contempt proceedings since 1934. (9) Congress created statutory criminal contempt in 1857. (10) Statutory criminal contempt requires a full committee or subcommittee, followed by the full House or Sen-Senate, to approve a contempt citation. (11) The Speaker of the House or the President of the Senate then will certify the citation and present it to the U.S. Attorney, who must bring the matter before a grand jury. (12) Civil contempt also is available in both the Senate and House, although using different procedures. In the Senate, 2 U.S.C. [section][section] 288b(b) and 288d authorize the Senate, through Senate Legal Counsel, to file suit in the U.S. District Court for the District of...