The attorney-client privilege protects communications, not
historical facts. And because the privilege's owner waives that
protection only by disclosing (or relying upon) privileged
communications, disclosing non-protected historical facts should
not cause a waiver.
Courts have applied this general principle when companies
provide historical facts to the government. In Escue v.
Sequent, Inc., Civ. A. No. 2:09-cv-765, 2012 U.S. Dist. LEXIS
9949 (S.D. Ohio Jan. 25, 2012), defendant company Sequent
investigated an allegedly illegal transfer of trust funds to
another account. After its investigation, the company's lawyer
sent a memorandum to the Department of Labor "detailing what
had occurred" and "explain[ing] how he learned of the
improper transaction and what steps Sequent took to correct
it." Id. at *24-25. Plaintiff argued that the
lawyer's memorandum "waives Sequent's privilege with
respect to all attorney-client communications regarding the
criminal investigation." Id. at *25. The court
rejected plaintiff's argument, explaining that "the
disclosures did not reveal any particulars concerning the advice
provided by counsel." Id. Instead, the memorandum
"contain[ed] a recitation of the facts counsel learned from
the investigation." Id. The court also noted that
plaintiff "has been permitted to question witnesses with
actual knowledge of the January 2006 transfer of funds."
Courts properly applying attorney-client privilege waiver
principles correctly conclude that even a lawyer's disclosure
of historical facts to an adversarial government does not waive
privilege protection for related communications.
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On November 14, 2013, after much controversy in the past years, the USCIS has finally clarified in its Policy Memorandum (PM-602-0093) that certain individuals who entered the U.S. pursuant to the Visa Waiver Program (VWP) may apply for Adjustment of Status in the United States, including those who violated their 90-day term of stay.
The United States Citizenship and Immigration Service (USCIS) created and implemented the Administrative Site Visit and Verification Program (ASVVP) in July 2009, under which it conducts unannounced site inspections at the offices of U.S. employers to verify information contained in pending and approved visa petitions.
Employers of foreign nationals should note that registration for the Fiscal Year 2015 Diversity Visa ("DV") Lottery opened yesterday, October 1, 2013, at noon (EDT) and will remain open until noon (EDT) on Saturday, November 2, 2013.