Protecting The Attorney-Client Privilege And Work Product Doctrine In Internal Investigations

• Published date: 30 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Cozen O'Connor
• Author: Ralf R. Rodriguez

Ralf Rodriguez contributed an article to the ACC South Florida Winter Newsletter discussing the key points in-house counsel should consider when conducting an internal investigation to establish and maintain its privileged status.

To read the full article, click here.

In-house counsel are rightly focused on the confidentiality of materials and communications from an internal investigation. To protect investigative materials and communications from disclosure, counsel must thoroughly understand how both the attorney-client privilege and the work product doctrine apply in this context. These privileges are limited, and counsel who do not know the limits risk an inadvertent waiver. This article provides an overview of the key points in-house counsel should bear in mind when conducting an internal investigation to establish and maintain its privileged status.

Investigative Purpose

At the outset of an internal investigation, in-house counsel should candidly assess whether its purpose is to provide the company with legal advice, or if it has a business purpose. In the former case, a court will usually treat the investigation as privileged. In the latter case, the materials will typically be discoverable. The distinction between an investigation conducted to provide legal advice to the company as opposed to an investigation completed "in the ordinary course of business" serves as the linchpin for determining whether the privilege applies. See e.g. In re County of Erie, 473 F. 3d 413, 420 n. 7 (2d Cir. 2007).

Thus, at the outset of an investigation, inhouse counsel should clearly document its scope and purpose. Identify the key legal issues for which the company is seeking legal advice, being mindful that this documentation could be reviewed in camera in the event of a governmental or third-party inquiry. Therefore, in-house counsel should clearly outline the legal advice being sought without revealing all the details.

Retention of Outside Counsel

Another factor the courts emphasize when analyzing assertions of privilege is whether the company retains outside counsel to provide legal advice and lead the investigation. Involvement of outside counsel helps establish that the investigation was initiated for the specific purpose of obtaining legal advice, that an attorney-client relationship attaches to the investigation, and that the company reasonably anticipated litigation. Each of these elements supports an assertion of privilege, and outside counsel's notes and...