Third, separate fact gathering from analysis. One firm may be tasked with gathering the facts, another firm with providing the analysis of those facts. Waiver of the first will not be a waiver of the second. An organization can do this in a number of ways such as separate projects, production of separate work product, conducted by separate lawyers or separate firms. A variation on that is to designate the fact gathering process as unprivileged with the legal
analysis based upon those facts. For example, rather than disclose who told you what (a waiver), you tell the government: here is what we learned (i.e. fact x, y and z) and this is who we interviewed to reach our conclusions. That information directs the government to the persons that it needs to interview and is thus extremely helpful to the government, yet at the same time respects the privilege.
Fourth, when you find yourself in the position of having to disclose information to the government, try to do it in steps pursuant to a confidentiality agreement. Use the so-called