Privilege Newsletter: Investigations - Cooperating With The Government Without Waiving Privilege

In response to a government investigation, the company has conducted a comprehensive internal investigation, taking steps necessary to establish and maintain applicable privileges and protections. The company now wants to cooperate with the government by providing information learned during its investigation, but it wants to avoid waiving privilege in doing so. Even more, it wants to avoid broad subject matter waiver over the investigation. It is axiomatic that facts are not protected by either the attorney-client privilege or the work product doctrine. Instead, the substance of communications, and related notes and summaries, may be protected by both the attorney-client privilege and the work product doctrine. Distilling non-privileged facts from privileged communications to prepare a presentation for the government can be challenging. If the company discloses the substance of identifiable privileged communications, there is a risk of waiver. 
 
A second rule of the road for communicating with the federal government, Federal Rule of Evidence 502(a), limits the risk that disclosure of some privileged information to the government will result in broad subject matter waiver. The traditional rule is that, where a party waives attorney-client privilege over a communication, the scope of waiver may extend to the entire subject matter of the communication. FRE 502(a), where applicable, overrides federal and state substantive law and significantly restricts courts from imposing subject matter waiver. FRE 502(a) provides that disclosures of privileged or protected information in a federal proceeding, or to a federal office or agency, will not result in subject matter waiver unless the waiver was intentional, and fairness requires consideration of undisclosed privileged information. The Committee Notes to FRE 502(a) explain that fairness requires further disclosures only in “unusual situations” where a party makes “a selective and misleading presentation of evidence to the disadvantage of the adversary.”
 
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© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.

Privilege Newsletter: Investigations - Cooperating With The Government Without Waiving Privilege
In response to a government investigation, the company has conducted a comprehensive internal investigation, taking steps necessary to establish and maintain applicable privileges and protections. The company now wants to cooperate with the government by providing information learned during its investigation, but it wants to avoid waiving privilege in doing so. Even more, it wants to avoid broad subject matter waiver over the investigation. It is axiomatic that facts are not protected by either the attorney-client privilege or the work product doctrine. Instead, the substance of communications, and related notes and summaries, may be protected by both the attorney-client privilege and the work product doctrine. Distilling non-privileged facts from privileged communications to prepare a presentation for the government can be challenging. If the company discloses the substance of identifiable privileged communications, there is a risk of waiver. 
 
A second rule of the road for communicating with the federal government, Federal Rule of Evidence 502(a), limits the risk that disclosure of some privileged information to the government will result in broad subject matter waiver. The traditional rule is that, where a party waives attorney-client privilege over a communication, the scope of waiver may extend to the entire subject matter of the communication. FRE 502(a), where applicable, overrides federal and state substantive law and significantly restricts courts from imposing subject matter waiver. FRE 502(a) provides that disclosures of privileged or protected information in a federal proceeding, or to a federal office or agency, will not result in subject matter waiver unless the waiver was intentional, and fairness requires consideration of undisclosed privileged information. The Committee Notes to FRE 502(a) explain that fairness requires further disclosures only in “unusual situations” where a party makes “a selective and misleading presentation of evidence to the disadvantage of the adversary.”
 
Read the full newsletter here.

Related Capabilities

Related Locations

© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.

News and Insights

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In New York Law Journal, The True Lender Doctrine and the OppFi Decision

Partners Jeremy Creelan, Michael Ross, Megan Poetzel, and Laurel Loomis Rimon, and Associate Molly Oberstein-Allen authored an article for the New York Law Journal examining the "True Lender" doctrine in light of a May 2026 California decision that provides the most detailed judicial framework to date for evaluating bank-nonbank lending partnerships.

July 1, 2026

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On July 1, Partner Michael Vernick will speak on a panel at the National Association of College and University Attorneys (NACUA) 2026 Annual Conference in Nashville.

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In Employee Relations Law Journal: What Happens When ERISA Disability Deadlines Slip

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June 23, 2026

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In Law360, Partner Samuel Feder Analyzes the Supreme Court's Ruling in FCC v. AT&T

Partner Sam Feder authored an article in Law360 examining the Supreme Court's June 4 decision in Federal Communications Commission v. AT&T Inc., which rejected AT&T's and Verizon's argument that the FCC's forfeiture process violates the Seventh Amendment right to a jury trial.

June 16, 2026