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Business Crime Full cooperation Precondition DPA/NPA

• Timely disclosure of all relevant facts
Attorney Client Priv. – Including attribution of facts to specific sources where
Crime Fraud this would not violate attorney-client priviledge
Waiver/Cooperation • Timely updates on facts learned in internal investigation
• All facts related to involvement of company’s officers,
employees or agents
• Facts about crimes by third party companies
• Proactive cooperation (not reactive)
• Timely preservation, collection, disclosure information
Jennifer Arlen (include overseas documents)
Norma Z. Paige Professor of Law
Director, NYU Program on Corporate Compliance & Enforcement • Make officers/employees available to DOJ where poss.
New York University School of Law • De-confliction of witnesses

Cooperation What Must Firm Do to Cooperate?

• Firm cannot destroy/hide document
• To get credit for cooperation firms must
• Firm can hire counsel for employees but cannot
provide the facts of the crime
encourage them not to cooperate
– Including evidence of individuals responsible
– May be required to make overseas employees
– Prosecutors are supposed to seek evidence against
available to the government
mangers
• Firm must conduct internal investigation to
• Attorney-Client learn and collect evidence about facts of crime
– Firm not expected to waive attorney-client privilege – Gov’t now requires that the firm provide all facts re
involvement of individuals
– Firm is expected to share the facts of the crime
• Facts themselves are not privileged – Gov’t expects prompt cooperation
• Include rapid disclosure “hot document” (DAG 9/2022)

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When does cooperation matter?

Can gov’t just get information directly
 Witness may assert 5th in speaking with govt
 Witnesses overseas may be outside the reach
of the gov’t
Legal Privileges
 Or it’s too expensive
 Witnesses may tell company counsel more
than they are willing to tell govt
 Idea they are on the same team
 Firm’s interviews may provide
impeachment/cross-examination material
even when witness talks to govt

Investigations: Privileged? Attorney Client

• Important question is whether the  A communication
–can be written, oral or non-verbal communications;
company can maintain secrecy of results of


 –applies only to the content of the communication, not the fact of the
investigation by hiring internal or external communication or to the underlying facts if they can be established
from sources other than disclosure of the confidential
counsel to do it. communication
• Can company retain privilege if it wants  Btw attorney & person who is/about to become a client
cooperation credit  For the purpose of obtaining legal advice from attorney,
 Is made in confidence
 (client reasonably expected that the communication would not be
divulged outside attorney-client relationship)
 Hasn’t been waived/lost

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For purpose of obtaining legal advice

Not apply to pre-existing documents
Purpose of A/C Privilege:
 Requires communication from client to
attorney “[T]o encourage full and
frank communication
 Preexisting writing only counts if made for between attorneys and their
the purpose of communicating with attorney BASIC clients and thereby promote
PRINCIPLES broader public interests in
 Eg letter to your attorney
the observance of law and
 Client cannot cloak preexisting writing done administration of justice”
for other purpose in A/C priv by giving them
to laweyr Upjohn Co. v. United States, 100

449 U.S. 383, 389 (1981)

A/C Privilege applies only when: Limitations

1. Person is or seeks to become a client
2. Communication is made to an attorney or  A communication
his staff in his capacity as a lawyer  –the privilege does not prevent discovery of the facts underlying
3. Communication related to facts the the communication if those facts can be established from sources
attorney learned from (i) his client (ii) other than disclosure of the confidential communication
without a third-party present (iii) for the
purpose of securing legal advice (unless to
BASIC commit a crime or tort or client hasn’t
PRINCIPLES otherwise waived privilege).  Made in confidence
• Extends to communications with others used  –if a third party is present, generally the privilege is blown
to solve legal problem, such as accountants, except where that third party: is assisting the attorney (secretary,
auditors, consultants, experts, etc.
law clerk, investigator, accountant, interpreter; is a
• Narrow view: Applies only to those who representatives of a parent corporation; or is participating in a
“translate” privileged communications to
assist the attorney (e.g., experts). joint defense with the lawyer and his client
101

• Broader view: Applies to communications

that make it easier for the attorney to provide
legal advice.

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continued Oral Communication

 Between an attorney and client • In-house and External Lawyers
 –a minority of courts have read this narrowly, meaning – Applies to both in-house and external lawyers if
that all communications from client to attorney are they are providing legal advice
covered but only the communications from the attorney • Corporate Lawyer: Priv. is the Firm’s
to the client which might tend to reveal the client
confidences are covered; Upjohn indicates that the – If corporation hire lawyer then the corporation
Supreme Court assumes that the privilege extends to controls privilege
communications from an attorney to the client • Executives and employees can’t resist disclosure
• Disclosure of communications waives the
privilege
– Selective waiver is not generally recognized

Scope of A/C Scope of A/C Privilege: Executives

 Must be a communication with a client • Can Executives Assert it?

– Questions arise as to what happens if the CEO consults
 Thus it would not apply to a lawyer’s with the firm’s General Counsel or outside counsel and
interviews of material witnesses who do not has a conversation that could be personally incriminating.
count as the “client”. – Can the firm in the course of cooperating share the
 Any protections? contents of the conversation or can the CEO assert his
own privilege and say the lawyer was acting for him.

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Employee Asserting Priv vis a vis Orga Lawyer Minority view

• Employee bears burden of proof
• Must establish that Ee approached counsel • In a few jurisdictions, if a lawyer fails to
seeking legal advice clarify that she is solely representing the
organization (as is part of Upjohn warnings),
• Made it clear seeking advice (and to hire lawyer)
then the employee can assert the privilege if
in her individual capacity
the employee reasonably believed that the
– Ee will fail where speaking to counsel that already represents
company and only represents firm lawyer represented the employee.
• General Counsel
• Firm’s outside counsel where employee never officially seek to
hire counsel individually. May have claim if lawyer already
representing Ee individually and not state only repr firm here
• Spoke with the lawyer in his individual capacity
and not in his corporate capacity

Work Product
Attorney W/P Privilege
 PROVIDES A QUALIFIED IMMUNITY FOR
1.Encompasses material “obtained or MATERIALS PREPARED IN ANTICIPATION OF
prepared by an adversary’s
counsel” in the course of his legal
LITIATION BY A PARTY, AN ATTORNEY OR
work OTHER REPRESENTATIVE OF A PARTY.
BASIC 2.Provided legal work was done in  IDEA IS NEED TO LET ATTRNY PREPARING
PRINCIPLES
anticipation of litigation FOR TRIAL ASSEMBLE MATERIAL THAT
3.Not automatically waived by WOULD BE OUTSIDE A-C PRIV: LIKE WITNESS
disclosure to a third-party (i.e., STATEMENTS
non-adversary).
 MUST BE PREPARIG FOR LITIGATION, OR
4.Both attorney and client can invoke IMMINENT LITIGATION
privilege 109

 MUST HAVE BEEN PREPARED WHILE

PREPARIG FOR LITIGATION, NOT PREVIOUSLY

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Limitations Qualified Priv

 Qualified Priv: overcome if gov’t shows  QUALIFIED PRIVILEGE: IT CAN BE
substantial need & undue hardship OVERCOME BY A SHOWING OF
 Waiver "SUBSTANTIAL NEED" AND "UNDUE
HARDSHIP" IN OBTAINING THE
 Crime/fraud exception "SUBSTANTIAL EQUIVALENT OF
MATERIALS BY OTHER MEANS"

Waiver
 WAIVE PRIV IF DISCLOSE UNDER CIRCUM Attorney Client:
WHERE SUBSTANTIALLY INCREASE
POSSIBILITY THAT AN OPPOSING PARTY Who counts as the client when a lawyer
COULD OBTAIN THE INFORMATOIN. hired by a firm conducts an
OK TO DISCLOSE TO PARTIES SHARING A


COMMON INTEREST WITH YOU W/O LOSING THE

investigation, interviewing employees
IMMUNITY -- DIFF FROM A-C
 WAIVE IF USE IN MANNER INCONSISTENT
WITH PRIV -- LIKE TO CROSS EXAMINE OR
IMPEACH WITNESS
 WAIVER OF A-C NOT NEC WAIVE WP PRIV

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UPJOHN “WARNINGS”
Upjohn 1981
 In January 1976, Upjohn’s independent accountants
• Employees made statements to counsel, at the direction of conducted an audit of one of the petitioner’s foreign
the company’s management, for counsel to provide subsidiaries and discovered that the subsidiary made
company legal advice payments to or for the benefit of foreign government
• Communications to counsel concerned matters within the officials in order to secure government business.
scope of their corporate duties
 The accountants told Mr. Thomas, Vice-President,
• Employees were aware that counsel was questioning them to
Secretary, and General Counsel, who consulted with
provide legal advice to company
outside counsel and the company’s Chairman;
• Company indicated communications were highly
confidential  decided that the company would conduct an internal
investigation of what were termed “questionable
• Warning: Counsel represents company, not employees, to
provide company legal advice and company may decide to 115
payments” using outside lawyers
disclose all statements it receives to the govt. , information  Firm’s lawyers prepared a letter for the Chairman’s
should be kept confidential by employee. signature to “all foreign general and area managers”
(appears to be to subsidiaries’ personnel)

What did letter do to try to retain priv Did the company tell others about payments?
noted recent disclosures of “possibly illegal” payments to foreign


government officials and emphasized that the management

 Filed a Form 8-K with the SEC and
needed full information concerning such payments; submitted a copy of the report to the IRS
 stated that the Chairman had asked Thomas, identified as 
General Counsel, to conduct an investigation for the purpose of
determining the nature and magnitude of any payments made by  Points up the fact that an internal
Upjohn or its subsidiaries to any employee or official of a foreign
government;
investigation may be required when word of
 instructed managers to treat the investigation as “highly possible wrongdoing is received because (1)
confidential” and not to discuss it with anyone other than Upjohn the company may need more information to
employees who might be helpful in providing the requested
information;
meet its regulatory disclosure obligations;
 required that responses be sent directly to Thomas; interviews of and (2) the company may need to adjust its
all recipients of the questionnaire and some 33 other Upjohn prior financial and tax reporting in order to
officers and employees were conducted by Thomas and outside
counsel avoid making false filings in future.

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IRS Started an investigation: why? IRS Subpoena

 Whether the company correctly accounted  What claim did company make to resist
for these questionable payments on its producing the investigation. Cannot assert 5th
books—perhaps it wrote bribes off as  “Written questionnaires sent to managers of the
business expenses and got a tax break Upjohn Company’s foreign affiliates, and
memoranda or notes of the interviews conducted
in the United States and abroad with officers and
employees of the Upjohn Company and its
subsidiaries”

Corporations Purposes of Attorney Client

 The Circuit court rejected the company’s  1. Encourages clients to communicate fully and
claim of privilege. Did it do so on the frankly with their lawyers;
grounds that corporations are not entitled to  2. It assists lawyers in providing competent counsel,
which is possible only through a thorough
privilege? understanding of the facts and motivations in the
 What are purposes? Do they apply to matter;
corporations?  3. It promotes compliance with the law by allowing
lawyers and clients to discuss issues freely in an effort
to resolve legal problems;
 4. It promotes the ultimate ends of justice by fostering
informed, and therefore vigorous, advice and advocacy

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What is claim no priv Policy

 What is gov’t claim not privileged  Why did it choose this control group?
 A/c only applies to conversations with “client”  The Sixth Circuit identified the corporation for
 Lower level employees are witnesses not clients privilege purposes as those persons who could
 What did 6th Cir hold? speak on behalf of the corporation—those with
the authority “to control or even to take a
 The privilege was held not to extend to
substantial part in a decision about any action
communications made by officers and agents
which the corporation may take upon the advice
who were not in the corporate “control group,”
of the attorney”—“only the senior management,
that is persons who were not responsible for
guiding and integrating the several operations …
directing Upjohn’s actions in response to legal
can be said to possess an identity analogous to
advice
the corporation as a whole”

Supreme Court Counter arguments

 Supreme court assumes corporation is  Getting the truth
entitled to A/C priv.  Might officers not speak for fear firm will share
 Focus is promoting “observance of law and administration information with gov’t and turn him
of justice” ;
 Does corp priv really enable firm’s lawyers to get the
 sound legal advice and advocacy serves public ends and
truth
would not be possible without attorney-related privilege;
 related concept in the corporate context—the Court wishes  Court assumes that a corporation would stop
to encourage good corporate citizenship; consulting counsel absent a privilege.
 the theory is that corporations would not have as much of  Could a corporation operate without counsel?
an incentive to seek legal advice to comply with laws—  Wouldn’t the civil, criminal, administrative and public
would not undertake internal investigations absent these relations implications of possible legal defaults compel
protections consultation with counsel even absent the privilege?
 5th A makes it hard to get to the truth

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What did S Ct object to about this test? Other reasons to go beyond CG?
 What is wrong with this test?
 Advice Providing role
 CG test “overlooks the fact that the privilege exists  “The attorney’s advice will also frequently be more significant
to protect not only the giving of professional to noncontrol group members than to those who officially
advice to those who can act on it but also the sanction the advice, and the control group test makes it more
difficult to convey full and frank legal advice to the employees
giving of information to the lawyer to enable him who will put into effect the client corporation’s policy.”
to give sound and informed advice”
 Compliance
 Can’t lawyers get info need from senior mgmnt  It “threatens to limit the valuable efforts of corporate
 Respon superior allows firm to be liable for crimes by lower counsel to ensure compliance with the law.”
level employees—outside control group
 Uncertainty
 With many crimes (FCPA) ordinary employees—not control
 the standard is so vague—that people cannot anticipate what will be
group—were involved and they have the information. covered. If the purpose of the privilege is to be served, the attorney
and client must be able to predict with some degree of certainty
h h i l di i ill b d

S Ct Policy What rule does the court adopt

 We want people to seek out advice as to  What rule does the court adopt (having
compliance with laws (before laws are announced that an “uncertain priv … is little
broken), especially in areas of law where the better than no privilege at all”
standards are not clear: if the privileged  Not adopt a rule
nature of consultation with a lawyer about  With respect to the particular materials at issue
prospective action is not clear, the Court here—the questionnaires and memoranda of
believes that corporations will be deterred interviews—the Court finds that they are
from seeking compliance advice privileged from production. In so doing, the
Court made clear that it was not setting out a
broad rule or series of rules to govern all
conceivable future questions in this area.

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Why Priv Here Upjohn: maintaining priv

 Firm hires lawyer in order to obtain info. from its Ees
about its activities in order to secure legal advice  1. Have the Board or an appropriate corporate officer
specifically authorize, in writing, the attorney’s
 Letter to employees informs them of this fact
internal investigation for the purpose of obtaining
 unclear re former employees legal advice, indicating the basis for the need for legal
 Employees told to speak to a lawyer acting for the firm advice (grand jury proceeding, etc.);
(in his legal capacity)  2. Restrict it to employees, make it clear that the
 Employee told to keep conversation confidential reason is for securing legal advice, and make explicit
 Told conversation protected by firm’s attorney client warnings about confidentiality;
privilege  3. Investigative findings and communications should
 needed information from lower level Ees b/c information be kept confidential in every way possible and should
was not available from upper echelon be disclosed to senior corporate officers with authority
 conversation concerned matters within their corporate to act on a “need to know” basis. Avoid
duties communications through nonlegal intermediaries.

UPJOHN

Court Rebuts “Zone of Silence” Argument

• A/C Privilege “only protects disclosure of communications”
and not “disclosure of underlying facts by those who
communicated with the attorney.”
• Govt free to ask employees what happened, just not what
they told counsel.
Work Product
• Convenience of obtaining company’s internal investigation
notes and MOI does not overcome policies served by the
AC privilege.
• Attorney’s notes beyond the A/C communications were
covered by the WP privilege

133

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Upjohn Work Product

• What is work product?
• With respect to the work product claim
– 1. Written statements, private memoranda and personal
before the Upjohn court, what was recollections prepared or formed by an adverse party’s
withheld on grounds of work product but attorney (or his representative)
not A/C privilege? – 2. “In the course of his legal duties”—usually read to
mean “prepared in anticipation of litigation or for trial”
– Thomas’ notes and memoranda of interviews go
• does not cover work prepared for independent reasons
beyond recording responses to his questions (i.e., which may have some application in later litigation
they record more than “communications”
• What material was work product
between the Upjohn employees and counsel).
– Thomas’ notes and memoranda of interviews go beyond
recording responses to his questions (i.e., they record more
than “communications” between the Upjohn employees
and counsel).

Gov’t argument to access? Scope of privilege

• What is gov’t argument for access? • Is this an absolute privilege like the attorney-client
privilege? When can the privilege be overcome?
– Qualified privilege that can be negated upon a
– It is a qualified privilege in that upon a showing of
showing of “undue hardship” and “substantial “undue hardship” and “substantial need” documents
need” documents otherwise covered by the otherwise covered by the doctrine may be ordered
doctrine may be ordered produced. produced.
• what does the Court indicate may be
uncovered with a sufficient showing?
– Nonprivileged facts where production of those facts is
essential to the preparation of one’s case; production
may also be justified where the witnesses are no longer
available or may be reached only with difficulty

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S Ct policy
• Privilege depends on whether ordinary work • What is the rationale behind the work product
product or opinion work product doctrine?
• Opinion Work Product – Essential to proper functioning of the adversary system:
– While standard rule is “substantial need” and “without undue it is important that a lawyer work with a certain degree
hardship” that doesn’t apply to workprduct based on oral of privacy and if there is no protection, much of what is
statement.
now put in writing would go unwritten—inefficiency,
– A higher standard than substantial need and inability to obtain
unfairness and sharp practices would inevitably develop
the equivalent without undue hardship is applied to this category
of materials (opinion work product) in the giving of legal advice and the preparation of cases
– Not specify the standard for trial; the effect on legal profession would be
demoralizing; the interests of the client and justice
• Statements by witnesses?
would be poorly served
– oral statements by witnesses, whether presently in the form of
attorney’s mental impressions or memoranda, will rarely be
ordered produced.Would reveal attorney’s mental processes

Can gov’t ever get this

• S Ct says says that some courts have concluded that no
standard of necessity can overcome protection of opinion
work product.
• S CT declines to rule on this but says that substantial need
and undue hardship is not standard. Way stronger than
Given Upjohn, why is CapitalOne in
necessity and unavailability. trouble with respect to its investigation
• Today circuits remain split on what showing if any suffices into its cyber hack
to force disclosure of opinion work product. Some say
never.

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CapitalOne (ED Va 2020) CapitalOne

• CapitalOne entered Master Services • Mandiant prepared a report that was
Agreement with FireEye (dba Mandiant) provided to Debevoise.
to investigate any cybersecurity breach • Debevoise sent it to CO’s legal department,
• Statement of work directed Mandiant to its board of directors, its financial
investigate any breach so CO could regulators, outside auditor, and dozens of
respond quickly. CO employees.
• CO had a breach. Hired Debevoise. • Mandiant paid out of the cyber budget.
Debevoise signed an agreement with • Private litigants sought a copy of the report.
Mandiant that used the same SOW and • CO says it’s work product
payment as 2019 agreement with CO.

Work Product RLI Test

• What must CO show to establish that the • Court should focus on:
report is work product • (1) whether the document at issue was created
– Test is whether the document was prepared “when [the] litigation is a real likelihood, [and
because of the prospect of litigation as a result of not]...when that litigation is merely a
an event possibility[,]” and
– If the document has both a business purpose and • (2) whether the document would have been
a litigation purpose, court must decide the created in essentially the same form in the
driving force behind the document absence of litigation
– Would the document have been produced “in the • The party “claiming the protection,” “bears the
ordinary course of business” even with no burden of demonstrating the applicability of the
litigaiton work product doctrine.”

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Why Does CO Lose: 2nd prong How can firms avoid this?
• Entered into agreement with M. before threat of • Consider retainer agreement with a law
litigation; Scope of agreement same as Debevoise firm for cyber incidents
– But isn’t it safe to say that litigation is anticipated
– Have law firm enter into a retainer agreement
whenever there is a breach. Ct said yes anticipated
litigation but primary purpose not anticipated litigation
with firm like FireEye
• SOW did not direct it to work with outside • Specify in SOW that law firm oversees.
counsel Make sure investigate issues material to
• CO treated it as a business expense and it both response and to litigation
appears it would need the same report even • Consider two reports—one for the business
without litigation side and one for the legal side
• CO broad post-production disclosures within the
business

Business Crime Exceptions to Attorney Client

Attorney Client Priv. • Fiduciary Exception

Crime Fraud
Waiver/Cooperation • Crime-Fraud

• Waiver

• [non exception but de facto limitation: DOJ

Jennifer Arlen policy on cooperation
Norma Z. Paige Professor of Law
Director, NYU Program on Corporate Compliance & Enforcement – Sharing the facts
New York University School of Law

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Exceptions to Privilege
 Waiver
 Waive if not assert privilege
 Waive if disclose previously privileged matters.
 Client is generally not permitted to make selective waive
(disclose to one person—gov’t—and not to others) or limited
Waiver waiver (disclose one part of the conversation while protecting
other parts).
 This is generally true even if disclose to govt
 Though gov’t has signed agreements saying that the disclosure is
selective and priv continues to hold. Some divisions in the courts on
whether those are valid.

 Communication with attorney for

purpose of committing crime or fraud

Waiver Implications of it being the firm’s privilege

• Company is in charge of whether the underlying facts
• Client can waive attorney-client privilege disclosed in privileged communications are shared and
– Lawyer cannot block it whether the privilege is waived
• Who Has Ultimate Authority to Decide?
– Board of directors (often independent committee)
– Board who is in charge now has authority
• Thus if the firm is acquired or the board turns over, it is the new
board who decides what information is shared with whom
• Trustee in Bankruptcy (CFTC v Weintraub) (notes)
– Trustee Given authority to manage the firm. This includes
authority to waive A/C re conversations by executives with
the firm’s lawyers

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Can the firm share? Cooperation: Retaining the Privilege

• Selective Waiver
• To get credit for cooperation firms must
– Majority rule is no selective waiver
provide the facts of the crime
• Can’t disclose to the gov’t without also waiving as
– Including evidence of individuals responsible
to other parties as to subject matter of disclosure
• A few juris (8th Cir) says that cooperative – Prosecutors are supposed to seek evidence against
disclosures to gov’t agencies do not constitute a mangers
general waiver
– Rule 502: An agreement between the parties is • Attorney-Client
only binding on them – Firm not expected to waive attorney-client privilege
– Rule 502: Does allow parties to get a court order – Firm is expected to share the facts of the crime
saying disclosure doesn’t waive • Facts themselves are not privileged
• Ct may not grant it

DOJ Filip Memo (Aug. 28, 2008) Disclosure of facts of the crime
• Evaluating Cooperation
– “Eligibility for cooperation credit is not predicated upon the waiver of • What result if the law firm just disclosed the
attorney-client privilege or work product protection. . . . [T]he analysis
parallels that for a non-corporate defendant, where cooperation typically facts of the crime and the witnesses who
requires disclosure of relevant factual knowledge and not of discussions
between an individual and his attorneys.” would be worth interviewing
• Facts Gathered Through Internal Investigations – Under DOJ policy this does not effect a waiver.
– “Often, the corporation gathers facts through an internal investigation.
Exactly how and by whom the facts are gathered is for the corporation to – This would appear not to effect one under this
decide. Many corporations choose to collect information about potential
misconduct through lawyers, a process that may confer attorney-client
case too.
privilege or attorney work product protection on at least some of the
information collected. Other corporations may choose a method of fact-
– Notice that in discussing the power point the
gathering that does not have that effect . . . .Whichever process the court notes that the law firm did not reference
corporation selects, the government’s key measure of cooperation must
remain the same as it does for an individual: has the party timely disclosed specific interviewees—who said what.
the relevant facts about the putative misconduct? That is the operative
question in assigning cooperation credit for the disclosure of
information—not whether the corporation discloses attorney-client or work
product materials.”

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Coburn Coburn Waiver

• Third party wants investigative materials obtained by • Cognizant can’t claim priv with respect to
Cognizant.
materials gave to gov’t
• Draft Press releases/Public Disclosures & communications
with PR firms – Detailed accounts of 42 interviews w/ 19 employees
– Pure PR; Not prepared in anticipation of litigation or • Disclosed to “adversary” under threat prosecution
to obtain legal legal advice • Breadth of waiver
• Communications re document retention policies are – Intentional: yes
privileged
– => waive same subject matter that ought in fairness
– Policies themselves are not priv
to be considered together
• Communications with EY (accountant)
– Waiver as to all memos notes etc of interviews
– Consulted as part of litigation; WP attaches
themselves; summareies
• Internal investigation
– Normally privileged but was it waived

Coburn II The Dance: Maintaining the Privilege

• Cognizant cannot redact the memos it’s • Govt and Counsel Engage in an Elaborate Dance to get
the facts while
required to disclose on the grounds that a
– (For the Govt) Not asking the company to waive
portion is privileged privilege when it needs the facts to build its case
– Disclosure to gov’t was intentional – (For the Company) Preserving the privilege when it
– Disclosed and undisclosed are same subject wants full cooperation credit.
matter
– Ought in fairness to be considered together • Practice Pointers:
– Summarize facts v. what witnesses said.
• Order applied waiver to all
– Avoid attributing specific facts to particular witnesses.
documents/communications that were – Identify witnesses for govt. to interview.
reviewed and formed any part of presentation
– Can identify documents that matter
to govt

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