Thread by @R_Denhollander

The importance of waiving privilege is a question I get all the time from institutions in crisis - it's an issue in every case I work on.

Here's the bottom-line with waiver - risks and benefits:

The benefit of waiving is huge - because attorneys are usually involved in crafting the policies both for prevention and response, you simply cannot accurately diagnose problems without waiving privilege. You won't have access to all the information.

Not being able to accurately diagnose the problem increases your liability over the long-run because you will keep making mistakes, causing damage, and having responsibility for it. If you want to be a good fiduciary, stop thinking myopically.

Start thinking comprehensively - long-term damage from undiagnosed problems, loss of trust, reputation, confidence, integrity, and protracted costs of doing the wrong thing for years and then finally getting caught. (Ask MSU - they're a case study in these dynamics.)

Benefits also include the chance to begin to rebuild trust and hey - do the right thing and start to repair some of the damage your institution did to real people. Hopefully we are all motivated by a chance to do the right thing and help others. Yes?

Risks: None. Unless you've created liability. Literally, there is only a risk if you've done really bad things and hurt people.

Because this is the actual issue with waiver:

Insurance companies usually have boilerplate provisions that say if you don't litigate against claims to the fullest (even if you know darn well that you're at fault), or if you waive, they don't have to pay out the policy.

So. . .

The risk with waiver is that your insurance company's policy won't kick in if you did really bad things, hurt people, and get caught.

You are risking insurance funds with waiver. That. Is. It.

So what this is, at it's core, is a choice to value insurance proceeds over people. Specifically, over people you actually hurt and caused life-altering damage to.

I wouldn't let my toddler get away with a rationale that says "things > people". Much less an adult.

In fact, all of my kids, by age two, knew that when they hurt someone else, they had to do the following:

"I am sorry that I (identify specific wrongdoing) and that it (identify specific damage). What can I do to help you/repair the relationship?"

That's basic repentance.

Literally, every one of my 4 kids could do this before their 3rd birthday.

So I don't think it's too much to expect grown adults to act on the same moral compass as toddlers are capable of acting on.

All of us know if we hurt someone, we should tell the truth and make it right.

The waiver question is nothing more than this:

What is more valuable to you? Insurance proceeds for the bad acting you did? Or people?

How much is a little girl (boy, person) worth?

That is the only actual question you are answering with waiver of privilege. That's it.

And if anyone tells you otherwise, they are not being honest. If an attorney tells you otherwise, they are lying. Because this is actually a very simple doctrine in these cases. If someone tells you otherwise, start asking why.