Settlement Situations and the Maintenance of Confidentiality: A Look at the Martin Marietta Decision

Monday, January 1st, 1990 at 12:00 am by Margaret A. Carfagno
Margaret A. Carfagno, Settlement Situations and the Maintenance of Confidentiality: A Look at the Martin Marietta Decision, 1990 Colum. Bus. L. Rev. 187

Both policy and precedent support the limited waiver rule for disclosures to the government in the Fourth Circuit. A broader scope of the privilege should be recognized when the client is a corporation, given the regulatory environment in which corporations operate. Moreover, a corporation utilizes its own resources and time in conducting internal investigations, and this should be encouraged so that governmental agencies need not assume this burden. The public’s interest in settlements should also be recognized in determining the scope of waiver. Finally, the Martin Marietta court had case law support for application of the limited waiver, but it applied the waiver doctrine strictly instead. A strict application of waiver ignores all of these elements and as a result may do great damage to the prospect of settlement of disputes between corporations and government agencies. It may also undermine the current regime of corporate self-policing.

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