• Superman Case Unable to Save Selective Waiver Theory
  • June 5, 2012 | Authors: Patrick Hromisin; Nicholas J. Nastasi
  • Law Firm: Saul Ewing LLP - Philadelphia Office
  • In In re Pacific Pictures Corp., No. 11-71844, 2012 WL 1293534 (9th Cir. Apr. 17, 2012), a dispute concerning royalties derived from the character of Superman, the Ninth Circuit Court of Appeals joined a majority of circuit courts eliminating the possibility of selective waiver. The theory of selective waiver would allow a party to claim attorney-client privilege, where applicable, over a document that it had previously produced to the government. Generally, voluntarily producing the document as part of a government investigation would constitute waiver of any privilege attached to that document, and the party could be forced to produce it in subsequent civil litigation. Under selective waiver, though, a party is free to produce documents to the government, and gain credibility through cooperation, without risking possible exposure in future civil litigation. The only federal court of appeals to recognize selective waiver is the Eighth Circuit. Its failure to gain wider acceptance means that businesses in highly-regulated industries must consider all collateral consequences when deciding what, if any, privilege to waive when responding to government subpoenas.