Be wary when providing privileged documents

April 1, 2010

Congressional authority is not the same as the authority given to a court of law

Congress's power to investigate, and the means by which it does so, are not expressly provided for in the Constitution, but are instead derived from its inherent powers to legislate. That authority is derived from the Constitution's "Necessary and Proper" clause and is bolstered by the congressional contempt statutes. Congress has both constitutional and statutory authority to punish those who refuse to comply with its subpoenas to appear or to produce books and records.

While it is true that the Supreme Court may review the constitutionality of Congress's deeds or decisions, it can not obligate the legislative branch to recognize the testimonial privileges witness enjoy in judicial settings.

Those subpoenaed by Congress must be wary when asked to produce privileged documents, as doing so waives the attorney-client privilege's protections as to all parties, including third-party civil litigants. Thus, corporations and individuals asked to produce documents are given the Hobson's choice of risking contempt of Congress on the one hand and waiving their testimonial privileges on the other.

CONGRESS QUICK TO INVESTIGATE

All is not lost, however, as those appearing before Congress can make efforts to convince it to recognize their testimonial privileges. While doing so may not yield the desired results at the congressional level, those same efforts may convince courts to find that there was no privilege or work product waiver in parallel or subsequent judicial proceedings.

The Anthem Blue Cross hearings illustrate Congress's capability to quickly investigate industries falling under its purview. In less than one week from Anthem's announcement, Congress issued subpoenas for documents and in a little more than two weeks after announcing its investigation, it held hearings.

Consequently, those who find themselves under investigation must understand the committee's rules and make efforts to protect the privilege. Failure to do so could have severe ramifications.

Jeffrey J. Ansley is a partner in the Dallas office of Bracewell & Giuliani LLP.

Don R. Berthiaume is an associate in the Washington, D.C., office of Bracewell & Giuliani LLP.