On April 21, 2012, the New York Times published an article concerning Wal-Mart Stores Inc. (“Wal-Mart” or the “Company”) covering up a bribery campaign in Mexico. An internal Wal-Mart investigation had revealed widespread bribery. The story led to a steep decline in Wal-Mart’s stocks, and because the investors were misled about the bribery, they sued the Company for violating U.S. securities laws. The shareholders are being led by a pension fund, City of Pontiac General Employees’ Retirement System (“PGERS”).
Five years later, Wal-Mart is currently fighting producing documents it claims are protected by the attorney-client privilege. Although it is well established in U.S. law that information that was revealed in confidence by clients to their attorneys is protected from disclosure, PGERS argued that merely passing information through attorneys does not create privilege for documents and information that would not otherwise be privileged. In essence, PGERS asserted that Wal-Mart is frivolously using attorney-client privilege to protect simple facts.
Wal-Mart maintains the facts collected in interviews with PGERS did not create a waiver of the Company’s privileges. Alternatively, Wal-Mart offered to allow PGERS to interview Holley again as long as it agreed on the waiver issue. While PGERS did not directly respond to this request it did describe the merits of the offer in a court filing saying the idea would only produce scripted and self-serving answers without the fear of meaningful cross-examination.
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Barstow, David. “Vast Mexico Bribery Case Hushed Up by Wal-Mart After Top-Level Struggle.” The New York Times. Last modified on April 21, 2012.
Newsham, Jack. “Wal-Mart Fights Investor Bid For Privileged Corruption Docs.” Law360. Last modified on April 14, 2017.