Can an Indicted Former Company Employee Use Privileged Company Documents in His Defense Over the Company’s Objection?

October 11, 2006

Surprisingly few courts have dealt with a fascinating question that lies at the intersection of the attorney-client privilege and a criminal defendant’s Sixth Amendment right to defend himself. Can an indicted former company employee defend himself using privileged documents that the company does not want revealed?

In United States v. W.R. Grace, 439 F. Supp. 2d 1125 (D. Mont. 2006), the court analyzed this issue in the context of former W.R. Grace employees indicted for environmental crimes. They wanted to defend themselves using privileged W.R. Grace documents, but the company continued to assert the privilege. The court ultimately concluded that “the law requires that the privilege yield where its invocation is incompatible with a criminal defendant’s Sixth Amendment rights.” Id. at 1145. The court noted that it was compelling disclosure of the privileged communications, so there would be no broad subject matter waiver.

Company lawyers should remember that the company’s privilege rights might yield to a criminal defendant’s constitutional rights under these circumstances.