Showing 302 of 302 results

Chapter: 22.1

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
("'The term 'internal investigation' has been used by both parties throughout this adjudication and, therefore, will be used in this opinion as well for consistency. However, technically the investigation was an 'external investigation' because it was conducted by outside counsel, not by in-house counsel.'")

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC

Chapter: 22.3

Case Name: Buchanan v. Sterling Construction Co., Civ. A. No. 4:16-cv-3429 JURY, 2018 U.S. Dist. LEXIS 39792 (S.D. Tex. March 12, 2018)
(analyzing privilege issues in connection with a corporate investigation (although without explaining what the investigation focused on); holding that the privilege could protect communications about the investigation; "The fact that defendants were communicating internally, or with their attorney, about the investigation does not support plaintiffs' contention that 'the Defendants or their attorneys were assisting in drafting or modifying the report.'")

Case Date Jurisdiction State Cite Checked
2018-03-12 Federal TX

Chapter: 22.3

Case Name: Olson v. Shawnee Cnty. Bd. of Comm'rs, Case No. 12-2084-JTM-KGG, 2013 U.S. Dist. LEXIS 38442, at *6, *6-7 (D. Kan. Mar. 20, 2013)
(finding an employment-related investigation was not protected by the privilege; "[A]fter counsel passes along responsibility for the investigation, the investigation occurs and a report is compiled by the investigator. Counsel then shares the contents of that report with the Sheriff."; "While the Court anticipates that 'legal guidance' occurs during this conversation, that does not make the contents of the underlying report -- which counsel did not draft and for which counsel did not conduct the underlying investigation -- privileged.")

Case Date Jurisdiction State Cite Checked
2013-05-20 Federal KS B 3/14

Chapter: 22.4

Case Name: McSparran v. Commonwealth of Pennsylvania, Civ. No. 1:13-CV-1932, 2016 U.S. Dist. LEXIS 19993 (M.D. Pa. Feb. 18, 2016)
(allowing the plaintiff to ask the government agency's investigator about the logistics of her investigation into sexual discrimination allegations, and also ask her about the facts she uncovered; dealing first with attorney-client privilege issues; "[T]he information at issue is not a communication. Plaintiff wants disclosure of the steps Moseley took during her investigation -- what she did, who she talked to, where she looked -- not disclosure of what agency counsel told her. Thus, Plaintiff seeks disclosure of underlying facts, and those facts do not become shielded under attorney-client privilege simply because they may have been included in a communication between Moseley and counsel. Id."; "Accordingly, we will deny Defendants' motion for protective order. Plaintiff may inquire into the steps Moseley took during the course of her investigation. She may also inquire into the facts Moseley learned during that investigation. Plaintiff may not, however, discover the contents of conversations Moseley had with agency counsel or the contents of conversations Moseley had with other DEP employees while acting at the direction of agency counsel. Such conversations, whether written or oral, are privileged attorney-client communications."; also finding the work product doctrine inapplicable)

Case Date Jurisdiction State Cite Checked
2016-02-18 Federal PA

Chapter: 22.5

Case Name: SEC v. Brady, 238 F.R.D. 429, 2006 U.S. Dist. LEXIS 74979, Civ. A. No. 3:05-CV-1416-M, 67 Fed. R. Serv. 3d (Callaghan) 26 (N.D. Tex. Oct. 16, 2006)
(analyzing attorney-client privilege and work product issues in an action by the SEC against a former corporate officer, who sought discovery of his former company's investigation into improper accounting and revenue recognition; explaining that the company's Audit Committee hired the law firm of Baker Botts to conduct an internal investigation with the assistance of KPMG, after which Baker Botts met with the company's new auditor Deloitte; holding that Baker Bott's investigation deserved privilege protection; "Brady [former director unsuccessfully seeking discovery] alleges that the Phase I Report was prepared in the context of rendering business advice, rather than legal advice."; "In asserting the privilege, i2 [former employer] and Baker Botts claim that i2 hired Baker Botts to deliver legal advice regarding the former officers' allegations of accounting improprieties and threats of litigation. They rely on Diversified Indus., Inc. v. Meredith, which quotes Wigmore on Evidence and states that '[i]t is not easy to frame a definite test for distinguishing legal from nonlegal advice. . . . [T]he most that can be said by way of generalization is that a matter committed to a professional legal adviser is prima facie so committed for the sake of the legal advice which may be more or less desirable for some aspect of the matter, and is therefore within the privilege unless it clearly appears to be lacking in aspects requiring legal advice.' 572 F.2d 596, 610 (8th Cir. 1977) (quoting 8 Wigmore, Evidence §2296 (McNaughton rev. 1961)). Additionally, i2 and Baker Botts contend that even though the Phase I Report includes some business considerations, the primary source of the Report was to provide legal advice."; "An in camera review of the Phase I Report revealed that it is laced with underlying facts, legal opinions, and business advice. Additionally, the fact that the Report was the result of many i2 officer and director interviews with Baker Botts leads the court to conclude that the interviews were confidential communications between the corporate client and its counsel. The court also finds that the presentation of the Phase I Report from Baker Botts to the i2 Audit Committee was, in essence, a written communication and the equivalent of a confidential communication between an attorney and his client.")

Case Date Jurisdiction State Cite Checked
2006-10-16 Federal TX
Comment:

key case


Chapter: 22.6

Case Name: Anderson v. SoftwareONE, Inc., Case No. 16-CV-1181, 2018 U.S. Dist. LEXIS 126812 (E.D. Wis. July 30, 2018)
(analyzing privilege and work product protection for an internal investigation into alleged sexual harassment and discrimination; finding both the attorney-client privilege and the work product inapplicable, because the investigation was not primarily motivated by legal concerns or litigation; "All SoftwareONE can muster in support of its argument is that 'QTI's investigation was done at the direction of SWO's in-house and outside counsel,' and 'SWO's counsel provided legal advice and direction so to ensure that the QTI investigation moved forward in an adequate way.'"; "The first argument -- that QTI's investigation was done at the direction of SoftwareONE's counsel -- is not enough to suggest the applicability of the attorney-client privilege. . . . Even if initiated by a business's attorney, investigations undertaken for the purpose of making business decisions, as opposed to obtaining legal advice, are not privileged.")

Case Date Jurisdiction State Cite Checked
2018-07-30 Federal WI
Comment:

key case


Chapter: 22.6

Case Name: Anderson v. SoftwareONE, Inc., Case No. 16-CV-1181, 2018 U.S. Dist. LEXIS 126812 (E.D. Wis. July 30, 2018)
(analyzing privilege and work product protection for an internal investigation into alleged sexual harassment and discrimination; finding both the attorney-client privilege and the work product inapplicable, because the investigation was not primarily motivated by legal concerns or litigation; "As for the second point -- that SoftwareONE's counsel provided legal advice and direction so as to ensure that the QTI investigation moved forward in an adequate way -- if SoftwareONE is attempting to suggest that its in-house counsel entered into an attorney-client relationship with QTI, it falls far short of establishing that."; "Only if QTI's investigators were 'professional legal adviser[s],' SoftwareONE sought their legal advice, and made confidential communications for the purpose of obtaining legal advice, would the communications plausibly be privileged.")

Case Date Jurisdiction State Cite Checked
2018-07-30 Federal WI
Comment:

key case


Chapter: 22.6

Case Name: Anderson v. SoftwareONE, Inc., Case No. 16-CV-1181, 2018 U.S. Dist. LEXIS 126812 (E.D. Wis. July 30, 2018)
(analyzing privilege and work product protection for an internal investigation into alleged sexual harassment and discrimination; finding both the attorney-client privilege and the work product inapplicable, because the investigation was not primarily motivated by legal concerns or litigation; "Businesses routinely investigate matters for their own purposes independent of the prospect of litigation."; "The party seeking the protection of the work-product doctrine has the burden to show the doctrine applies."; "The court concludes that SoftwareONE has failed in its burden to show that the documents sought by Anderson were created in anticipation of litigation rather than for SoftwareONE's own business purposes. Although SoftwareONE could reasonably recognize based on some of the allegations in Anderson's October 1, 2015 email (ECF No. 25-1) that there was a possibility that she might sue it, Anderson's allegations were expansive, including many matters for which she could not personally seek legal redress but which any prudent business would investigate."; "The fact that SoftwareONE's in-house attorney initiated the investigation, coupled with the fact that SoftwareONE learned soon after the email complaint that Anderson had retained counsel, are insufficient without significantly more to sustain SoftwareONE's burden on this issue. Significantly, as Anderson points out, SoftwareONE does not support its motion with an affidavit or declaration from its in-house counsel, or anyone else for that matter, stating that QTI was hired in anticipation of litigation. Moreover, SoftwareONE has failed to support its claim of work-product with the sorts of relevant details the court would expect -- such as the nature and scope of QTI's engagement; details as to the actual investigation; a detailed description of the documents that were allegedly created in anticipation of litigation; details as to SoftwareONE's policies and procedures for conducting internal investigations of complaints of discrimination, etc. Without the identification and discussion of specific documents, the court is unable to analyze whether any particular document was created in anticipation of litigation."; "Essentially all SoftwareONE has offered are the assertions of its current attorney contained in its brief, where she asserts, unsupported by any evidentiary support, that SoftwareONE retained QTI in anticipation of litigation. . . . But that falls far short of showing the requisite causation between the prospect of litigation and the investigation. It is entirely foreseeable that, even if SoftwareONE were somehow assured that Anderson would not be pursuing litigation, it nonetheless would investigate her allegations. Therefore, the court will deny SoftwareONE's motion to quash the subpoena issued to QTI.")

Case Date Jurisdiction State Cite Checked
2018-07-30 Federal WI

Chapter: 22.6

Case Name: Pitkin v. Corizon Health, Inc., Case No. 3:16-cv-02235-AA, 2017 U.S. Dist. LEXIS 208058 (D. Ore. Dec. 18, 2017)
(finding that the attorney-client privilege protected an investigation undertaken by a jail health services contractor into the death of an inmate; adopting the one "primary purpose" privilege standard from the D.C. circuit court case in Kellogg Brown & Root; "I am persuaded by the Kellogg [In re Kellogg Brown & Root, Inc., 756 F.3d 754, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)] court's reasoning, and I adopt it here. Because the Ninth Circuit has not adopted a characterization of the 'primary purpose' test that aids in categorizing the kinds of mixed-motive investigations specifically at issue here, I will apply the gloss provided by the D.C. Circuit Court of Appeals in Kellogg."; "Accordingly, the attorney-client privilege protects the results of the Sentinel Event investigation undertaken by Corizon in the aftermath of Ms. Pitkin's untimely and unfortunate death. Corizon has satisfied each element of the attorney-client privilege standard, showing that it sought factfinding and advice at the direction of Corizon's in-house legal team. Moreover, it showed that at least one primary purpose of the investigation was to 'assess the situation from a legal perspective, provide legal guidance, and prepare for possible litigation and/or administrative proceedings.'. . . That Corizon was fulfilling its obligations under its own corporate policies or its contract with Washington County -- or both -- is of no moment. As the Kellogg court explained, '[i]t is often not useful or even feasible to try to determine whether the purpose was A or B when the purpose was A and B.'. . . Common sense suggests that the death of an inmate would trigger numerous obligations for the organization charged with her care, not the least of which would be an assessment of liability. Accordingly, the attorney-client privilege applies to the Sentinel Event investigation, and Corizon is not required to produce it.")

Case Date Jurisdiction State Cite Checked
2017-12-18 Federal OR
Comment:

key case


Chapter: 22.6

Case Name: Carr v. Lake Cumberland Regional Hospital, Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017)
February 21, 2018 (PRIVILEGE POINT)

"Courts Assessing Privilege and Work Product Claims in an Investigation Context Examine Several Factors"

Courts assessing privilege and work product claims for corporate investigations usually focus on (1) the investigation's initiation (analyzing what motivated the investigation), and (2) the investigation's course (usually looking for lawyers' involvement). Less frequently, courts also focus on (3) the corporation's use of the investigation results. That post-investigation factor can shed light on the investigation's initial motivation.

In Carr v. Lake Cumberland Regional Hospital, Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017), the court overruled defendant hospital's privilege and work product claims for documents the hospital created while investigating an allegedly botched surgery. Analyzing one withheld email, the court rejected the hospital Risk Manager's affidavit claiming work product protection – noting that her statement "indicating that she would let the 'administrative team' know about the conversation . . . as opposed to in-house counsel or outside counsel – suggests that at the time of the creation of the emails, neither party crafted their emails 'in anticipation of litigation.'" Id. at *13.

Corporations and their lawyers must remember that courts examining privilege and work product protection for investigation-related documents focus on the investigation's initiation, course, and even how the client used investigation-related documents.

Case Date Jurisdiction State Cite Checked
2017-11-15 Federal KY
Comment:

key case


Chapter: 22.6

Case Name: Johnson v. J. Walter Thompson U.S. A., LLC, 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
(in an opinion by Magistrate Judge Francis, holding that drafts of and communications relating to an investigation conducted by the Proskauer Rose law firm into client's alleged Title VII violation deserved both privilege and work product protection; also noting that the defendant had abandoned a Faragher-Ellerth defense, but that the court would have to review the withheld documents in camera to determine if defendant waived either protection by using the report for "context" in connection with its "good faith" defense; "Proskauer has declined to disclose (1) electronic and handwritten notes taken by Proskauer attorneys during the investigation interviews; (2) earlier drafts of the Proskauer Report containing attorney comments; (3) invoices submitted to the Corporate Defendants; (4) documents provided to Proskauer by JWT and the interviewees in the course of the investigation; and (5) emails among Proskauer attorneys and between Proskauer attorneys and JWT witnesses or outside counsel regarding the investigation and the lawsuit (collectively, the 'Proskauer Documents')."; "[I]t is not the Report itself that is at issue, but rather the documents generated during the investigation."; "With respect to many of the Proskauer Documents, I disagree. 'Rare is the case that a troubled corporation will initiate an internal investigation solely for legal, rather than business, purposes; indeed, the very prospect of legal action against a company necessarily implicates larger concerns about a company's internal procedures and controls, not to mention its bottom line.'. . . Yet the purpose of a communication need not be exclusively legal in order for the privilege to attach. . . . Rather, the legal purpose need only be predominant, and identification of such a purpose 'may [] be informed by the overall needs and objectives that animate the client's request for advice.'. . . Here, there were no doubt multiple motivations for commencing an internal investigation and engaging in the subject communications: to gather information to defend this lawsuit; to determine whether systemic changes were necessary; to decide on a course of action specifically with respect to Mr. Martinez; and to ameliorate a public relations problem. Yet all of these purposes were suffused with the need for legal advice triggered by a lawsuit that had already been filed. This is confirmed by the fact that the Proskauer report contains multiple references to the allegations contained in the lawsuit . . . as well as the fact that its recommendations reflect the application of legal expertise . . . . The plaintiff complains that any claim that the Proskauer investigation had a primarily legal purpose is undermined by the fact that the Corporate Defendants' outside counsel, Davis & Gilbert, had already conducted one . . . . But, surely, the fact that a client chooses to seek legal advice from multiple attorneys does not cast doubt on the privileged nature of communications with any one of them."; "This is true even where the document in its final form is intended to be disseminated publicly. . . . As discussed above, the Proskauer Report reflects the provision of legal advice so the drafts of that report are similarly privileged. Moreover, even if the drafts are not privileged in their entirety, they are also subject to work product protection, as will be discussed below."; "In this case, the Corporate Defendants raised a Faragher/Ellerth defense in their Answer. . . . However, they have since disavowed use of the Proskauer Report in connection with any Farragher/Ellerth defense. They first made this clear at a court conference. . . and they state unequivocally in their reply memorandum that 'Defendants will not be using the legal conclusions in the Proskauer Report . . . to support their position that there has been no violation of the law . . . . ' (Reply Memorandum of Law in further Support of Defendants' Motion for Protective Order)."; "This does not, however, end the inquiry. The Corporate Defendants have indicated that they do not intend to rely on the Proskauer Report 'to provide context for the actions they took as a result of the business recommendations in the Report.'. . . Reliance by the Corporate Defendants on the conclusions of the report does not open up to discovery the details of the investigation that led to the report. . . . Therefore, there is no waiver with respect to the categories of the Proskauer Documents that could be relevant, if at all, only to the accuracy of the findings in the report, specifically, notes of interviews of JWT employees, drafts of the report, and invoices."; "However, when a party asserts a good faith defense, as the Corporate Defendants appear to do here, it may not selectively proffer the information upon which it relied. . . . Here, the extent to which the Corporate Defendants acted in good faith on the basis of the Proskauer Report is dependent upon the totality of the legal advice they received. Thus, the communications related to Proskauer's conclusions, but not the reliabililty of the investigation lending to those conclusions, are discoverable. Accordingly, if they intend to introduce the Proskauer Report in evidence, the Corporate Defendants shall produce for my in camera review any documents withheld on grounds of privilege that reflect communications between themselves and Proskauer or between Proskauer and David & Gilbert concerning the subject matter of the Proskauer Report. In that way, I can determine whether fairness necessitates the disclosure of these documents to the plaintiff.")

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 22.6

Case Name: Johnson v. J. Walter Thompson U.S. A., LLC, 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
(in an opinion by Magistrate Judge Francis, holding that drafts of and communications relating to an investigation conducted by the Proskauer Rose law firm into client's alleged Title VII violation deserved both privilege and work product protection; also noting that the defendant had abandoned a Faragher-Ellerth defense, but that the court would have to review the withheld documents in camera to determine if defendant waived either protection by using the report for "context" in connection with its "good faith" defense; "In this case, the Corporate Defendants raised a Faragher/Ellerth defense in their Answer. . . . However, they have since disavowed use of the Proskauer Report in connection with any Farragher/Ellerth defense. They first made this clear at a court conference. . . and they state unequivocally in their reply memorandum that 'Defendants will not be using the legal conclusions in the Proskauer Report . . . to support their position that there has been no violation of the law . . . . ' (Reply Memorandum of Law in further Support of Defendants' Motion for Protective Order)."; "This does not, however, end the inquiry. The Corporate Defendants have indicated that they do not intend to rely on the Proskauer Report 'to provide context for the actions they took as a result of the business recommendations in the Report.'. . . Reliance by the Corporate Defendants on the conclusions of the report does not open up to discovery the details of the investigation that led to the report. . . . Therefore, there is no waiver with respect to the categories of the Proskauer Documents that could be relevant, if at all, only to the accuracy of the findings in the report, specifically, notes of interviews of JWT employees, drafts of the report, and invoices."; "However, when a party asserts a good faith defense, as the Corporate Defendants appear to do here, it may not selectively proffer the information upon which it relied. . . . Here, the extent to which the Corporate Defendants acted in good faith on the basis of the Proskauer Report is dependent upon the totality of the legal advice they received. Thus, the communications related to Proskauer's conclusions, but not the reliabililty of the investigation lending to those conclusions, are discoverable. Accordingly, if they intend to introduce the Proskauer Report in evidence, the Corporate Defendants shall produce for my in camera review any documents withheld on grounds of privilege that reflect communications between themselves and Proskauer or between Proskauer and David & Gilbert concerning the subject matter of the Proskauer Report. In that way, I can determine whether fairness necessitates the disclosure of these documents to the plaintiff.")

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 22.6

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; finding that the report deserved privilege protection; "Attorney-client privilege protects confidential communications between attorneys and clients, including internal investigation reports supplied by attorneys to their clients, when one of the significant purposes of communication is legal advice, rather than only business advice. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)."; "After reviewing the report in camera, the Court concludes that the report was confidential legal advice from an attorney to a client, and therefore is protected by attorney-client privilege. The Court presumes that outside counsel is retained for legal purposes. . . . Here, the presumption is borne out by the document itself. It includes legal conclusions as to the company's exposure to liability, legal recommendations for avoiding liability from these allegations and protecting against future misconduct that could lead to new allegations, and litigation strategies relating to the sexual harassment allegations at issue at the time of the report. Thus, a 'significant purpose' of the report was to provide legal advice. . . . There are also several indications that the document was intended to be a confidential communication between an attorney and his clients. The report is labeled 'Attorney-Client Privilege' and states that it is '[n]ot to be disseminated beyond ownership group,' with Ergo's owners listed by name underneath. Thus, because the report contains primarily legal advice and was a confidential communication between an attorney and his clients, the report is privileged.")

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 22.6

Case Name: In re Fairway Methanol LLC and Celanese Ltd., No. 14-16-00884-CV, 2017 Tex. App. LEXIS 830 (Tex. App. 14d Jan. 31, 2017)
(protecting as privileged documents created by a company's in-house lawyer investigation; noting that Texas did not following the "primary purpose" test; but finding the work product doctrine applicable after noting that a company affidavit indicated that the departments role in the investigation was not ordinary; "According to Rowen [Celanese's corporation's in-house lawyer], the primary purpose for the investigation and creation of documents and communications therefrom was to aid Celanese in preparing to defend itself in anticipated litigation. As a secondary concern, the information communicated from the investigative team to the legal department was necessary for the legal department to provide Celanese with business and legal advice with respect to the potential termination of employees involved in the accident. The team members were immediately informed that the investigation was for the purpose of assisting counsel and that all communications and documents generated during their investigation must be kept confidential and marked as 'Privileged and Confidential' or 'Attorney-Client Privilege -- Attorney Work Product.' The investigative team conducted interviews and site inspections and communicated their findings to the Celanese Law Department. They prepared a root cause analysis which was necessary for the Celanese Law Department to evaluate liability and begin developing a strategy for defending itself in likely civil and regulatory litigation. Rowen states, 'All of the communications withheld by Celanese were communications between Celanese in-house and outside counsel and their representatives made for the purposes of providing and communicating legal advice or otherwise facilitating or providing professional legal services.'"; "Plaintiffs cite no Texas authority for their position that the communication must have been made for the primary purpose of soliciting legal, rather than business advice. And the federal decisions supporting Plaintiffs' position are not binding on our court. More important, the language of Rule 503(b) does not require that the primary purpose of the communication be to facilitate the rendition of legal services; it only requires that the communication be made to facilitate the rendition of legal services.")

Case Date Jurisdiction State Cite Checked
2017-01-31 Federal TX
Comment:

key case


Chapter: 22.6

Case Name: Thomas v. Kellogg Company, Case No. C13-5136-RBL, 2016 U.S. Dist. LEXIS 66881 (W.D. Wash. May 20, 2016)
(finding that work prepared by a consulting firm or Kellogg did not deserve privilege or work product protection; noting that plaintiff's Rule 30(b)(6) witness did not know who commissioned the report; also noting that the court realized the engagement letter between Kellogg and the consultant and the consultant's report itself; "A review of the report confirms that it was not prepared for Kellogg's attorneys so they could provide legal advice; it was patently prepared to assist Kellogg's in making its workforce more efficient and 'effective in growing sales' -- quintessential business advice."; "The engagement letter (sent by Willard Bishop to a Mr. Martin at 'DSD cost control'), the agreement, and the Report itself all confirm what the 30(b)(6) witness explained: the Report was a study of the efficiencies or 'effectiveness' of the RSRs."; "[N]one of the documents references any legal issue or litigation. And while virtually all business decisions can or do have 'legal implications' that does not mean that every business decision run through an in-house attorney is attorney-client privileged."; also finding the work product doctrine inapplicable)

Case Date Jurisdiction State Cite Checked
2016-05-20 Federal WA
Comment:

key case


Chapter: 22.6

Case Name: U.S. Bank National Association v. PHL Variable Insurance Company, Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670 (D. Minn. March 30, 2016)
(finding that neither the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; including after an in camera review the risk assessment involved business rather than legal concern; "PHL has not convinced the Court that they retained Bracewell & Guiliani primarily for the purpose of obtaining legal advice. Rather, the majority of the Report suggests improvements to PHL's business practices aimed at resolving what the first page of the Report refers to as the 'clear economic risk' presented by STOLI policies. Thus, to the extent that there is a presumption that communications between an attorney and client are in pursuit to legal advice, U.S. Bank has shown evidence rebutting that presumption. Accordingly, the Court will not find the Report as a whole protected by attorney-client privilege."; "For example, a November 7, 2007, email states that PHL retained 'an outside firm 'Bracewell and Giuliani' to review our current procedures and provide recommendations to us on how to improve the detection and prevention of life insurance sales intended to be investor owned. They have provided this type of service to others serious about ensuring the quality of business and bring to [PHL] expertise in this field.'. . . Another email referred to the firm's activities with PHL as 'consulting.' (Id., Ex. P) A presentation given at a risk management meeting stated, 'Bracewell and Guiliani recommendations -- majority implemented from business plan.' Finally, another presentation stated that PHL '[e]ngaged Bracewell & Guiliani law firm to assess and recommend STOLI prevention tactics.'. . .")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN
Comment:

key case


Chapter: 22.6

Case Name: U.S. Bank National Ass'n v. PHL Variable Insurance Co., Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016)
May 25, 2016 (PRIVILEGE POINT)

"Court Finds Bracewell & Guiliani Report Unprotected by the Privilege or the Work Product Doctrine"

Many clients assume that the attorney-client privilege will almost always automatically protect any law firm's report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other common client assumptions, this overly optimistic view is frequently wrong.

In U.S. Bank National Ass'n v. PHL Variable Insurance Co., defendant PHL withheld from production a 39-page report written by three lawyers from the law firm then known as Bracewell & Guiliani — supporting its privilege and work product claim with a declaration that it retained Bracewell & Guiliani "for the purpose of seeking legal consultation, advice and counsel." Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016). But the court rejected both claims. Among other things, the court pointed to non-protected emails, undoubtedly written by the defendant's business folks -- announcing that the company had hired Bracewell & Guiliani "'to review our current procedures,'" because that law firm had provided services to others "'serious about ensuring the quality of business.'" Id. At *6 (internal citations omitted). Other unprotected client documents described the law firm's activities as "'consulting,'" and mentioned the firm's recommendations about the company's "'business plan.'" Id. At *7 (internal citations omitted). The court also reviewed in camera the Bracewell & Guiliani report itself — noting that "the majority of the Report suggests improvements to PHL's business practices." Id. The court again pointed to its in camera review of the report in also rejecting PHL's work product claim — noting that the firm's report "was not 'mapping litigation strategy.'" Id. At *16 (citation omitted).

Corporations hiring law firms should remember that a court might review business executives' description of the law firm's role, and also read the law firm's communications.

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN
Comment:

key case


Chapter: 22.6

Case Name: Motion Industries, Inc. v. Superior Derrick Services, LLC, Civ. A. No. 15-1958 Section: "H"(5), 2016 U.S. Dist. LEXIS 23826 (E.D. La. Feb. 26, 2016)
(analyzing an internal corporate investigation into possibly improper transactions; holding that in the Fifth Circuit litigation need not be imminent to trigger the work product doctrine protection; finding plaintiff's brief provided inadequate supporting protection internal corporate investigation documents; "In the present case, there is literally nothing in the record, including the documents themselves, that would allow this Court to undertake the inquiry necessary to find these documents to be privileged. As for what the 'primary motivating purpose behind the creation of the document' might have been, the Court can only guess. This is the sum total information provided by the Plaintiff in brief to explain the documents' genesis: 'An employee contacted Movant's human resources department in July 2013 and as a result of that contact, an investigation was initiated. Movant retained Asset Protection as a contractor to assist in the process of the investigation.'"; "As a statement in support of a privilege claim, this one leaves much to be desired, as it creates far more questions than it provides answers. Who was the employee that contacted human resources and why? An 'investigation was initiated' by whom and why? What is 'Asset Protection?' Where are the privilege logs referenced in the brief? Who are the six employees identified? Are any of them attorneys? Were any attorneys involved in this investigation? Why, if at all, did anyone anticipate litigation resulting from this human resources 'contact?'"; "It should be noted that the documents themselves do not in any way help the Court answer any of these questions. The mere statement by counsel in brief that '[t]he motivation for the investigation and the preparation of the documents in relation to the investigation was an anticipation of litigation' is woefully insufficient to carry Plaintiff's burden in the absence of any supporting evidence in the record.")

Case Date Jurisdiction State Cite Checked
2016-02-26 Federal LA

Chapter: 22.6

Case Name: Gillespie v. Charter Communications, Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185 (E.D. Mo. Sept. 24, 2015)
(finding that an investigation into alleged racial discrimination did not deserve privilege or work product protection; "Charter argues that the incident report is privileged because it was created by Charter's Director of Human Resources at the direction of, and following a process instituted by, Charter's compliance team, which includes three in-house attorneys. Charter provides no facts as to the overall size of the compliance team, nor to the composition of its remaining members."; "In this case, unlike Geller [2011 U.S. Dist. LEXIS 129751, 2011 WL 5507572], the incident report was not prepared in response to any pending litigation, and the Director of Human Resources who prepared the report did so as an agent of Charter's entire corporate compliance team, rather than a single defense attorney as was the case in Geller. Therefore, the Court finds that the attorney-client privilege does not apply to either the EthicsPoint complaint or the incident report."; also finding the work product doctrine inapplicable).

Case Date Jurisdiction State Cite Checked
2015-09-24 Federal MO

Chapter: 22.6

Case Name: Frickey v. Kobelco Stewart Bolling, Inc., Civ. A. No. 14-2 Sec. "I" (2), 2015 U.S. Dist. 27264 (E.D. La. March 5, 2015)
(finding that Dow's post-accident root cause analysis did not deserve privilege protection; noting Dow had already produced all witness statements and factual documents collected during the investigation, despite an in-house lawyer's involvement in the investigation; "Eddlemon [In-house lawyer] states that she and Dow Legal were involved in all phases of the investigation and that she 'supervised meetings, oversaw the investigative process, approved written documents, and in sum, oversaw preparation of the conclusions set forth in the' Root Cause Investigation report at issue. . . . She avers that the investigation was 'closed to third parties' and that "complete confidentiality was maintained throughout' it. . . . She states that the Root Cause Investigation 'Report and legal conclusions regarding the cause of the September 13, 2012 accident were prepared and ultimately relied upon by Dow and Union Carbide management and Dow Legal to respond to the incident, make recommendations, prepare the matter for trial, and in general, perform the regular functions of legal counsel.'")

Case Date Jurisdiction State Cite Checked
2015-03-05 Federal LA

Chapter: 22.6

Case Name: Frickey v. Kobelco Stewart Bolling, Inc., Civ. A. No. 14-2 Sec. "I" (2), 2015 U.S. Dist. 27264 (E.D. La. March 5, 2015)
(finding that Dow's post-accident root cause analysis did not deserve privilege protection; noting Dow had already produced all witness statements and factual documents collected during the investigation, despite an in-house lawyer's involvement in the investigation; "Every page of the Root Cause Investigation report is marked 'attorney-client privileged.' The second page states that the report is an attorney-client communication that was prepared for the purpose of obtaining legal advice and notifies recipients that they may not disseminate it without permission from Dow Legal or Eddlemon. . . . The report contains no other references to law, legal advice or litigation. It includes factual analyses of the root causes that led to the accident and action items to address the identified causes. None of the action items are assigned to Eddlemon. The final page summarizes what has been learned and makes a few recommendations for what appear to be longer term actions."; "I find that Eddlemon's affidavit and the Root Cause Investigation report contain only conclusory and self-serving allegations about attorney-client privilege. Viewed in light of the overall content of the report, these allegations fail to carry Dow's burden to prove that the report was not prepared in the ordinary course of business of investigating an accident.")

Case Date Jurisdiction State Cite Checked
2015-03-05 Federal LA
Comment:

key case


Chapter: 22.6

Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015)
April 8, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part I”

Some companies begin internal investigations or audits for business reasons, but later try to cloak related communications and documents with work product privilege protection. Although some companies successfully argue that a business-related investigation "morphed" into a privilege-protected investigation, most attempts fail.

In United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *5 (W.D. Wis. Feb. 10, 2015), NeuroScience retained a regulatory compliance company (CodeMap) to conduct a "full, flat-fee compliance audit" of its billing practices after its billing manager suddenly resigned. About a month later, CodeMap reported that NeuroScience had overbilled Medicare and some insurance companies. In the meantime, NeuroScience's outside Minneapolis law firm learned that the ex-billing manager had accused the company of fraudulent billing practices. About ten days later, NeuroScience and its law firm agreed that the law firm "should supervise the remainder of CodeMap's audit activities." Id. at *7. CodeMap sent a Services Proposal indicating that the law firm would now direct CodeMap's "baseline" compliance audit, and stating that related communications would deserve privilege and work product protection. Id. However, CodeMap later admitted that (1) "counsel really did not provide much internal 'direction' to CodeMap at all" (id. at *8); (2) lawyers were not present when CodeMap auditors met with NeuroScience employees; and (3) lawyers generally did not receive copies of email message traffic between CodeMap and company employees during the audit. CodeMap's chief auditor later acknowledged that "'[b]y the time Counsel was involved, CodeMap already knew the work to be done and how to do it, so the legal oversight, as [he] understood it, was to maintain privilege.'" Id. at *9-10 (internal citation omitted).

Next week's Privilege Point will describe the court's work product and attorney-client privilege analysis.

Case Date Jurisdiction State Cite Checked
2015-02-10 Federal WI
Comment:

key case


Chapter: 22.6

Case Name: United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015)
April 15, 2015 (PRIVILEGE POINT)

“Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part II”

Last week's Privilege Point described an outside regulatory compliance consultant's work for a company which worried about its non-compliant billing practices and about possible litigation, that consultant's later agreement to work under outside lawyers' "direction," and the admitted lack of any such day-to-day direction. United States v. NeuroScience, Inc., No. 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572, at *7 (W.D. Wis. Feb. 10, 2015).

The court first rejected NeuroScience's work product claim. The court held that the company hired the compliance auditor CodeMap for business purposes, and that lawyers' later involvement "was a tactic designed solely to cloak the audit documents" with some protection. Id. at *17. The court concluded that the outside lawyers "in fact provided no direction at all," and found no evidence that "CodeMap changed the focus of its audit or conducted it any differently after it was agreed that the Services Proposal should be routed through counsel." Id. at *18. Although outside lawyers used the audit's result, the court explained that "the focus is on the circumstances of the communication at the time it was made." Id. The court also rejected NeuroScience's privilege claim. The court noted that the company hired CodeMap "without any direction from counsel," and that CodeMap "conducted and completed [its] coding review and transmitted the results" to NeuroScience before any lawyer's involvement. Id. at *24. And after the lawyers' "post-hoc retention of CodeMap," there was no evidence that "the focus of CodeMap's audits changed." Id. at *25. The court therefore concluded that "there is no question that [the outside law firm's] retention of CodeMap was a subterfuge specifically designed to cloak the audits with privilege." Id. at *26.

This and other similar cases highlight the wisdom of involving lawyers at the first hint of a problem, and assuring their intense hands-on involvement in any consultants' work the company intends to withhold as privileged or as work product.

Case Date Jurisdiction State Cite Checked
2015-02-10 Federal WI
Comment:

key case


Chapter: 22.6

Case Name: In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY
Comment:

key case


Chapter: 22.6

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)
(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; rejecting plaintiff's argument that GM's "primary purpose" in conducting the investigation was not to obtain legal advice; adopting the "one of the significant purposes" standard; "The primary purpose test, however, does not require a showing that obtaining or providing legal advice was the sole purpose of an internal investigation or that the communications at issue 'would not have been made 'but for' the fact that legal advice was sought.' In re Kellogg Brown & Root, Inc., 756 F.3d 754, 759 (D.C. Cir. 2014). Instead, as the D.C. Circuit has expressly held, 'the primary purpose test, sensibly and properly applied, cannot and does not draw a rigid distinction between a legal purpose on the one hand and a business purpose on the other.' Id. At 759. 'So long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation . . . .' Id. At 758-59."; "[T]he D.C. Circuit's holding is consistent with -- if not compelled by -- the Supreme Court's logic in Upjohn. Rare is the case that a troubled corporation will initiate an internal investigation solely for legal, rather than business, purposes; indeed, the very prospect of legal action against a company necessarily implicates larger concerns about the company's internal procedures and controls, not to mention its bottom line. Accordingly, an attorney-client privilege that fails to account for the multiple and often-overlapping purposes of internal investigations would 'threaten[] to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law.' Upjohn, 449 U.S. at 393."; "[R]egardless of whether New GM had other purposes in retaining Jenner, and regardless of whether the Valukas Report itself contained legal as opposed to business advice -- a question this Court need not, and does not, reach -- the underlying investigation, and the interviews conducted as part of it, had a 'primary purpose' of enabling Valukas and Jenner to provide New GM with legal advice.")

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY
Comment:

key case


Chapter: 22.6

Case Name: Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197, 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015)
(holding that neither the attorney-client privilege nor the work product doctrine protected Chevron's "legally chartered" "root cause analysis" of a fatal pipeline accident, although in-house lawyer's affidavit explained that Chevron anticipated litigation, and as such "legally chartered root cause investigations are not routine"; "On the basis of the Legal Charter and Youngblood's Declaration describing its genesis and his handling of the RCA Team's work product upon the completion of its work, Chevron seeks to protect the RCA and all documentation related to its creation under both the attorney-client and work product privileges. Importantly, Chevron, through Youngblood, claims the following: 'Within Chevron, legally chartered root cause investigations are not routine. While root cause procedures are utilized by Chevron's Health, Environmental, and Safety (HES) group to analyze incidents and near miss events, often in conjunction with outside contractors, in order to identify improvements to procedures or equipment, HES incident reviews are separate and distinct from root cause analyses conducted at the request of the Law Department pursuant to a Legal Charter.'")

Case Date Jurisdiction State Cite Checked
2015-01-05 Federal LA

Chapter: 22.6

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *10 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "So long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation and even if the investigation was mandated by regulation rather than simply an exercise of company discretion.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 22.6

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *14-15 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "In this case, there can be no serious dispute that one of the significant purposes of the KBR internal investigation was to obtain or provide legal advice. In denying KBR's privilege claim on the ground that the internal investigation was conducted in order to comply with regulatory requirements and corporate policy and not just to obtain or provide legal advice, the District Court applied the wrong legal test and clearly erred.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 22.6

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, *13-14 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "[I]t is clearer, more precise, and more predictable to articulate the test as follows: Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication? . . . Sensibly and properly applied, the test boils down to whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication. In the context of an organization's internal investigation, if one of the significant purposes of the internal investigation was to obtain or provide legal advice, the privilege will apply. That is true regardless of whether an internal investigation was conducted pursuant to a company compliance program required by statute or regulation, or was otherwise conducted pursuant to company policy.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 22.6

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *6-7 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "KBR's assertion of the privilege in this case is materially indistinguishable from Upjohn's assertion of the privilege in that case. As in Upjohn, KBR initiated an internal investigation to gather facts and ensure compliance with the law after being informed of potential misconduct. And as in Upjohn, KBR's investigation was conducted under the auspices of KBR's in-house legal department, acting in its legal capacity. The same considerations that led the Court in Upjohn to uphold the corporation's privilege claims apply here.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 22.6

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)
July 16, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part II"

Last week's Privilege Point described the legal standard and some of the factual bases for the District of Columbia District Court's denial of privilege protection for Kellogg Brown & Root's (KBR) internal corporate investigation. This week’s privilege point tells the good news -- when about three months later, the D.C. Circuit Court of Appeals issued a writ of mandamus reversing the District Court's holding. In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014).

The District of Columbia federal appellate court first rejected the district court's legal standard, holding that the privilege could protect a company's investigation if its need for legal advice was one of the "primary" or "significant" motivating purposes – even if not the only purpose, or the primary purpose. Id. at *13-14. The appeals court also explicitly addressed several factual indicia the district court relied on, holding that (1) KBR's requirement under government regulations to investigate alleged fraud did not preclude KBR's argument that another "significant purpose[]" was seeking legal advice; (2) nonlawyers could conduct privileged employee interviews while "serving as agents of attorneys"; (3) the absence of Upjohn warnings did not prevent privilege protection, because "nothing in Upjohn requires a company to use magic words"; and (4) although the employees' confidentiality agreements did not "expressly" mention KBR's need for legal advice, employees knew the law department was conducting a "sensitive" investigation and were warned not to discuss their interviews without KBR's General Counsel's authorization. Id. at *8-10.

The appeals court's legal standard represents a much more privilege-friendly approach than most courts apply. The standard permits companies to claim privilege protection even for investigations they must undertake pursuant to external requirements -- rather than having to initiate parallel or successive investigations to gain the protection. And the court's analysis of the factual issues provides a much more lenient standard for claiming privilege than most courts would apply. Next week's Privilege Point will discuss what the D.C. Circuit Court of Appeals' decision did not address.

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal
Comment:

key case


Chapter: 22.6

Case Name: McCullough v. Fraternal Order of Police, Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 79281, at *7-8 (N.D. Ill. June 11, 2014)
(analyzing defendant's investigation of possible sexual harassment; holding that the investigation-related documents deserved privilege protection and work product protection; holding that the defendant could refer to remedial steps and the investigation, but would waive any protection by using investigation-related documents at the trial; "[T]he Court finds that the D'Alba Report (and associated notes and memoranda) is protected by the attorney client and work product privileges. FOP asserts that the report contains 'legal analysis and advice' from D'Alba, which was hired 'in response to a complaint of sexual harassment by an employee' and 'due to the prospect of litigation.' . . . . The firm conducted 'confidential interviews,' prepared the report, marked the report 'privileged and confidential,' and shared the report with only certain FOP management employees and no third parties. . . . "The conduct of the D'Alba attorneys during their investigation is persuasive; the attorneys conducted confidential interviews, marked their report 'privileged and confidential,' and restricted access by third parties to the report.")

Case Date Jurisdiction State Cite Checked
2014-06-11 Federal IL

Chapter: 22.6

Case Name: United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014)
July 9, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part I"

After a decade or more of generally bad news for corporations seeking privilege protection for their internal corporate investigations, the District of Columbia Circuit has issued an opinion containing good news on all fronts.

In March 2014, the District of Columbia District Court denied attorney-client privilege and work product doctrine protection for documents Kellogg Brown & Root (KBR) (and affiliates) created during an internal corporate investigation. United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014). Five days later, the court denied a stay. United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014). The District Court used a narrow version of the "primary purpose" test for privilege protection -- holding that "[t]he party invoking the privilege must show the 'communication would not have been made "but for" the fact that the legal advice was sought.'" Halliburton, 2014 U.S. Dist. LEXIS 36490, at *7-8 (citation omitted). In applying this standard, the District Court pointed to a number of facts, including (1) the investigation "resulted from the Defendants [sic] need to comply with government regulations"; (2) nonlawyers conducted the interviews; (3) those nonlawyers did not give Upjohn warnings informing the interviewed employees "that the purpose of the interview was to assist KBR in obtaining legal advice"; and (4) the interviewed employees signed confidentiality agreements that did not mention the investigation's legal purpose. Id. at *9-10. In most courts, these factors would probably have doomed KBR's privilege claim even under a more favorable "primary purpose" test.

The next two Privilege Points will describe the District of Columbia Circuit Court's reversal of this ruling.

Case Date Jurisdiction State Cite Checked
2014-03-11 Federal DC
Comment:

key case


Chapter: 22.6

Case Name: United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014)
July 9, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part I"

After a decade or more of generally bad news for corporations seeking privilege protection for their internal corporate investigations, the District of Columbia Circuit has issued an opinion containing good news on all fronts.

In March 2014, the District of Columbia District Court denied attorney-client privilege and work product doctrine protection for documents Kellogg Brown & Root (KBR) (and affiliates) created during an internal corporate investigation. United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014). Five days later, the court denied a stay. United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014). The District Court used a narrow version of the "primary purpose" test for privilege protection -- holding that "[t]he party invoking the privilege must show the 'communication would not have been made "but for" the fact that the legal advice was sought.'" Halliburton, 2014 U.S. Dist. LEXIS 36490, at *7-8 (citation omitted). In applying this standard, the District Court pointed to a number of facts, including (1) the investigation "resulted from the Defendants [sic] need to comply with government regulations"; (2) nonlawyers conducted the interviews; (3) those nonlawyers did not give Upjohn warnings informing the interviewed employees "that the purpose of the interview was to assist KBR in obtaining legal advice"; and (4) the interviewed employees signed confidentiality agreements that did not mention the investigation's legal purpose. Id. at *9-10. In most courts, these factors would probably have doomed KBR's privilege claim even under a more favorable "primary purpose" test.

The next two Privilege Points will describe the District of Columbia Circuit Court's reversal of this ruling.

Case Date Jurisdiction State Cite Checked
2014-03-06 Federal DC
Comment:

key case


Chapter: 22.6

Case Name: Telamon Corp. v. Charter Oak Fire Ins. Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583, at *12, *13-14, *14 n.1 (S.D. Ind. Jan. 17, 2014)
(finding that an internal corporate investigation conducted by Barnes & Thornburg into possible theft of inventory did not deserve privilege or work product protection; addressing these issues in a first party insurance case, in which the defendant insurance company sought documents from the investigation company Chamberlain; finding attorney-client privilege protection inapplicable; "The court's in camera examination reveals that nearly all of Chamberlain's file materials could not be classified as privileged attorney-client communications because they are public records or Telamon's business records. The gathering of public and business records by an investigator, or the funneling of business documents through one's attorney's office (or through one's fraud investigator), does not make those documents privileged."; "[S]ome of the communications obviously were not made to obtain legal advice, were not maintained in confidence, or were not even intended as a confidential communication in the first place. For example, the communications include (a) an email chain sent by the lawyers to Chamberlain lauding its reputation as a fraud investigator; (b) emails to set up meetings; and (c) emails that do not involve counsel at all or any bona fide connection to legal advice. . . . [D]documents within Chamberlain's file reveal that Chamberlain's investigatory work was not inextricable from Barnes & Thornburg's provision of legal advice and that its work was conducted because Telamon had a pressing business reason to uncover what it believed was large-scale inventory fraud by one of its workers. Documents indicate that the use of Barnes & Thornburg as the nominee client to Chamberlain was for the purpose of attempting to shield Chamberlain's work as privileged. It is apparent, however, that Barnes & Thornburg did not in fact direct this investigation, but that Chamberlain designed the investigation and determined the records to gather and review, the persons to interview, the questions to be asked, and the manner of interrogation."; "Moreover, waiver principles would prevent the assertion of the privilege as to the majority of the Chamberlain investigative file. Telamon provided to the insurers a preliminary investigative report prepared by Chamberlain that it otherwise asserts was a privileged communication. That report summarizes 'key' interviews and documents. When the privilege is waived as to an attorney-client communication, the waiver extends to all communications on the same subject matter. . . . The subject matter of the preliminary report is the investigative work conducted by Chamberlain. By producing the preliminary report (apparently for the purpose of proving its insurance claim and the losses suffered), Telamon waived the privilege with respect to the documents in the investigative file that are the 'nuts and bolts' source documents of Chamberlain's work, including the interview summaries, document analyses, and investigative background summaries.")

Case Date Jurisdiction State Cite Checked
2014-01-17 Federal IN B 6/14

Chapter: 22.6

Case Name: In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal
Comment:

key case


Chapter: 22.6

Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343 (S.D.N.Y. Oct. 24, 2013)
December 18, 2013 (PRIVILEGE POINT)

"Courts Deny Privilege Protection for Compliance-Related Documents"

Many corporate clients erroneously assume that the attorney-client privilege or the work product doctrine will protect their compliance-related communications. However, such communications face the same impediments to either protection as other internal corporate communications.

For instance, the attorney-client privilege only protects communication primarily motivated by clients' request for legal advice. In United States ex rel. Gale v. Omnicare, Inc., the court found that the privilege did not protect "Compliance Committee meetings and the documents drafted by [the company's CCO]," – because the company's previous agreement with the government required such meetings. Case No. 1:10-CV-00127, 2013 U.S. Dist. LEXIS 143831, at *4 (N.D. Ohio Oct. 4, 2013). The court concluded that "[t]he meetings and documents sought to comply with its contract with the United States, not to obtain legal advice." Id. The privilege also normally depends on lawyers' involvement. In Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343 (S.D.N.Y. Oct. 24, 2013), Judge Scheindlin held that the privilege did not protect documents created during the Bank of China Chief Compliance Officer's investigation into the bank's possible dealings with terrorists. Judge Scheindlin noted that after the Bank's CCO received Plaintiff's demand letter, "'he called outside counsel, then set about performing the investigation within the Compliance Department – without the involvement of any counsel.'" Id. At *35 (citation omitted). Judge Scheindlin cited an earlier case's blunt conclusion that "[p]rivilege does not apply to 'an internal corporate investigation . . . Made by management itself.'" Id. At *36 (citation omitted).

Companies and their lawyers should not assume that the compliance function automatically, or even usually, deserves privilege protection.

Case Date Jurisdiction State Cite Checked
2013-10-24 Federal NY
Comment:

key case


Chapter: 22.6

Case Name: United States ex rel. Gale v. Omnicare, Inc., Case No. 1:10-CV-00127, 2013 U.S. Dist. LEXIS 143831, at *4 (N.D. Ohio Oct. 4, 2013)
December 18, 2013 (PRIVILEGE POINT)

"Courts Deny Privilege Protection for Compliance-Related Documents"

Many corporate clients erroneously assume that the attorney-client privilege or the work product doctrine will protect their compliance-related communications. However, such communications face the same impediments to either protection as other internal corporate communications.

For instance, the attorney-client privilege only protects communication primarily motivated by clients' request for legal advice. In United States ex rel. Gale v. Omnicare, Inc., the court found that the privilege did not protect "Compliance Committee meetings and the documents drafted by [the company's CCO]," – because the company's previous agreement with the government required such meetings. Case No. 1:10-CV-00127, 2013 U.S. Dist. LEXIS 143831, at *4 (N.D. Ohio Oct. 4, 2013). The court concluded that "[t]he meetings and documents sought to comply with its contract with the United States, not to obtain legal advice." Id. The privilege also normally depends on lawyers' involvement. In Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343 (S.D.N.Y. Oct. 24, 2013), Judge Scheindlin held that the privilege did not protect documents created during the Bank of China Chief Compliance Officer's investigation into the bank's possible dealings with terrorists. Judge Scheindlin noted that after the Bank's CCO received Plaintiff's demand letter, "'he called outside counsel, then set about performing the investigation within the Compliance Department – without the involvement of any counsel.'" Id. At *35 (citation omitted). Judge Scheindlin cited an earlier case's blunt conclusion that "[p]rivilege does not apply to 'an internal corporate investigation . . . Made by management itself.'" Id. At *36 (citation omitted).

Companies and their lawyers should not assume that the compliance function automatically, or even usually, deserves privilege protection.

Case Date Jurisdiction State Cite Checked
2013-10-04 Federal OH
Comment:

key case


Chapter: 22.6

Case Name: United States v. ISS Marine Services, Inc., Misc. A. No. 12-481 (BAH), 905 F. Supp. 2d 121, 2012 U.S. Dist. LEXIS 166088 (D.D.C. Nov. 21, 2012)
("If a communication would have been made even if legal advice were not explicitly being sought, then it is difficult to say that that communication's primary purpose was to seek legal advice."; "In applying these principles, the Government argues that the Audit Report was not created for the purpose of seeking legal advice. The Government posits that 'nothing about the March 2008 Audit Report indicates that it was part of a request for legal advice,' the Report was 'not directed to any attorney or a person employed by an attorney,' it 'does not contain any legends indicating that it is privileged,' and 'Inchcape's CEO waited nearly two months after it was completed to forward the Audit Report to its outside counsel.'. . . In support of this argument, the Government offers the sworn declaration of Larry Cosgriff, who served as the Senior Vice President of Inchcape Government Services during the relevant time period. As discussed above, Cosgriff states that it was his understanding that Hyldager and Tory 'undertook this internal audit to obtain information to enable Messrs. Hyldager and Tory, the Inchcape audit committee and the Inchcape Board of Directors to make a business decision as to what further action, if any, Inchcape would take to address' the allegations raised by the two Inchcape employees."; "At bottom, the respondent's claim to privilege appears to be premised on a gimmick: exclude counsel from conducting the internal investigation but retain them in a watered-down capacity to 'consult' on the investigation in order to cloak the investigation with privilege. Unfortunately for the respondent, this sort of 'consultation lite' does not qualify the Audit Report for the protections of the attorney-client privilege. First and foremost, the fact that Inchcape purposefully eschewed the involvement of outside counsel – or any attorneys whatsoever – in the internal investigation and audit militates strongly against applying the attorney-client privilege. When a company fails to involve lawyers directly in an internal investigation, the company faces a higher burden to demonstrate that the attorney-client privilege applies to the results of that investigation. The Tory Declaration indicates that, at most, A&P generically 'recommended initiating an internal investigation' and drafted a memorandum that 'framed' the issues relating to 'potential criminal and civil liability implicated by the activities as reported.'. . . The Tory Declaration also states that A&P 'prepared a list of documents necessary to more fully assess the issues identified,'. . . though Tory notably does not specify that A&P would be the ones 'more fully assess[ing] the issues identified.' Although Tory states that he pursued the internal investigation 'in consultation with outside counsel,'. . . the record is devoid of any evidence to suggest that A&P provided any consultation to ISS Marine while the investigation was actually being conducted. A&P's framing of the issues related to potential liability and its guidance about the types of documents that would be helpful all took place before the investigation began. As Cosgriff explains: "A&P did not participate in the interview process or the review of documentary evidence.'. . . Even when Inchcape took steps to verify the information in the Audit Report, Tory indicates that Hyldager performed this 'follow up,' rather than an attorney."; "This sort of arms-length coaching by counsel, as opposed to the direct involvement of an attorney, undercuts the purposes of the attorney-client privilege in the context of an internal investigation."; "Thus, the Audit Report memoralizing the contents of the documents and information gathered from this investigation and audit does not justify the protection of the attorney-client privilege. For the results of an internal investigation to enjoy the attorney-client privilege, the company must clearly structure the investigation as one seeking legal advice and must ensure that attorneys themselves conduct or supervise the inquiries and, at the very least, the company must make clear to the communicating employees that the information they provide will be transmitted to attorneys for the purpose of obtaining legal advice.")

Case Date Jurisdiction State Cite Checked
2012-11-21 Federal DC
Comment:

key case


Chapter: 22.6

Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *38 (S.D. Ohio Nov. 13, 2012)
(holding that documents created during a 2006 compliance audit deserved privilege protection; "The withheld documents reflect that the information gathered by . . . corporate employee[s] and transferred to General Counsel was done so at counsel's request and in furtherance of counsel's provision of legal advice.")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 22.6

Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *27 28 (S.D. Ohio Nov. 13, 2012)
(holding that some documents prepared during a third party consultant's audit deserved privilege protection; "Mr. Sullivan's communication to URS demonstrates that the audit information was to be communicated only to necessary SunCoke corporate employee and was otherwise to be considered privileged and confidential. . . . Ms. Pack's affidavit confirms that the audit was prepared to assist counsel with providing legal advice to SunCoke.")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 22.6

Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *27 (S.D. Ohio Nov. 13, 2012)
(holding that some documents prepared during a third party consultant's audit deserved privilege protection; "[I]n July 2008, SunCoke's president directed in-house counsel to conduct an HES audit of HNCC to assess its compliance with regulatory requirements and company policies and to provide SunCoke with legal advice based on such findings. In addition, correspondence from SunCoke's outside counsel, Andrew Sullivan, to URS establishes that the audit was requested by counsel for SunCoke so that URS's investigation, analyses, and opinions could be used by counsel to provide legal advice to SunCoke. . . . Further, a review of the documents reveals that the audit reports contain more than raw information and/or data and include the advice and opinions of URS personnel directed to SunCoke on legal compliance issues.")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 22.6

Case Name: Collins v. Braden, 384 S.W.3d 154, 160 (Ky. 2012)
(holding that the attorney-client privilege might protect documents created during an internal corporate investigation about a plaintiff's suicide; remanding for further evidence; "But the fact that the communications were collected pursuant to hospital policy does not make them business advice or otherwise remove them from the privilege. The policies in question were promulgated by the hospital's in-house lawyer and relate to the collection of information after a potentially tortious event in the hospital. No doubt, any death in a hospital creates the risk of litigation. The attorney-client privilege is not contingent on actual or threatened litigation. Statements made by a hospital's employees in such circumstances are made as part of a comprehensive program by which the hospital seeks to determine, with the assistance of counsel, the best legal strategy to pursue in regard to the tort that may have happened on the hospital's premises. The policies here were not general business policies, such as those aimed at reducing waste or hiring qualified employees; rather, they were promulgated by the hospital's in-house lawyer for the purpose of assessing the risk of and preparing for possible litigation." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 State KY B 9/13

Chapter: 22.6

Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 132 (D.D.C. 2012)
(analyzing privilege and work product protection for an audit; noting that the company had specifically indicated that it did not need the assistance of Arnold & Porter in connection with the audit; "The fact that Inchcape [affiliate of defendant] had an obvious and compelling business purpose to conduct an internal audit to ascertain any overpayments further militates in favor of concluding that the privilege does not apply because it suggests that the Audit Report would have been created even if Inchcape was not seeking legal advice.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 7/13

Chapter: 22.6

Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 131 (D.D.C. 2012)
(analyzing privilege and work product protection for an audit; noting that the company had specifically indicated that it did not need the assistance of Arnold & Porter in connection with the audit; "For the results of an internal investigation to enjoy the attorney-client privilege, the company must clearly structure the investigation as one seeking legal advice and must ensure that attorneys themselves conduct or supervise the inquiries and, at the very least, the company must make clear to the communicating employees that the information they provide will be transmitted to attorneys for the purpose of obtaining legal advice.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 7/13

Chapter: 22.6

Case Name: Collins v. Braden, 384 S.W.3d 154, 160 (Ky. 2012)
("But the fact that the communications were collected pursuant to hospital policy does not make them business advice or otherwise remove them from the privilege. The policies in question were promulgated by the hospital's in-house lawyer and relate to the collection of information after a potentially tortious event in the hospital.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State KY B 1/14

Chapter: 22.6

Case Name: Planicka v. Am. Anesthesiology of Va., P.C., CL 2011 1344, 2011 Va. Cir. LEXIS 135, at *2 (Va. Cir. Ct. Nov. 22, 2011)
("Upon review of Carey's investigation notes, the Court finds the investigation proceeded with guidance and direction from counsel, and in anticipation of litigation. Such information is privileged under Rule 4:1(b)(3) work product doctrine and under attorney-client privilege, and is not discoverable by Plaintiff Planicka in this matter.")

Case Date Jurisdiction State Cite Checked
2011-11-22 State VA

Chapter: 22.6

Case Name: Sandra T.E. v. S. Berwyn Sch. Dist. 100, No. 08-3344, 2009 U.S. App. LEXIS 28983 (7th Cir. App. Feb. 25, 2009)
(reversing the lower court's denial of privilege protection, and holding that Sidley Austin lawyers were hired as legal advisors to conduct an investigation into possible sexual abuse at the school – so their investigation-related documents deserved privilege and work product protection; "[T]he School Board retained the law firm of Sidley Austin LLP (then Sidley Austin Brown & Wood LLP) to conduct an internal investigation. The School Board wanted Sidley to review the criminal charges filed against Sperlik, investigate the actions of school administrators in response to the allegations of sexual abuse, examine whether any district employees had failed to comply with district policies or federal or state law, and analyze the effectiveness the effectiveness of the District's existing compliance procedures. According to the February 4, 2005 engagement letter between Sidley and the School Board, Sidley was to 'investigate the response of the school administration to allegations of sexual abuse of students' and to 'provide legal services in connection with' the investigation. Scott Lassar, a partner at Sidley and a former U.S. Attorney for the Northern District of Illinois, spearheaded the investigation."; "On the same day the engagement letter was issued, the School Board president and superintendent of schools sent a joint letter to parents announcing the District's retention of Lassar to conduct the investigation. Ten days later the superintendent sent another more detailed letter to parents explaining that the investigation had begun and would be completed as soon as possible. As the investigation proceeded, attorneys from Sidley interviewed many school-district employees, including current and former principles, social workers, administrative employees, and members of the School Board. Sidley also interviewed a handful of third parties who had never been employed by the School District. None of the interviews were recorded. Instead, the attorneys took notes of the witnesses' answers and later prepared written memoranda memorializing the interviews for future use in Sidley's legal advice to the Board. These notes and memoranda are the subject of the present discovery dispute."; "Lassar and a Sidley colleague delivered an oral report of the firm's findings at a closed executive session of the Board in April 2005, and later that month delivered a written 'Executive Summary' – marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product' – to the Board. This concluded Sidley's engagement; other lawyers have represented the defendants throughout this litigation."; "[T]he judge all but ignored the engagement letter, which should have been the most important piece of evidence. The engagement letter between Sidley and the School Board explained that Sidley had been hired to 'investigate the response of school administration to allegations of sexual abuse of students' and 'provide legal services in connection with the specific representation.' There is no indication that the judge actually considered the engagement letter when it was brought to the court's attention in these later proceedings; rather, the judge simply reiterated his earlier rulings that Sidley had been hired as an investigator and the privilege therefore did not apply."; "This oversight was a mistake; the engagement letter brings this case squarely within the Supreme Court's decision in Upjohn."; "Following Upjohn, other circuits have concluded that when an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney-client privilege."; "The same is true here. The engagement letter spells out that the Board retained Sidley to provide legal services in connection with developing the School Board's response to Sperlik's sexual abuse of his students. Sidley's investigation of the factual circumstances surrounding the abuse was an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice about how the District should respond. . . . the conduct of Sidley attorneys during the investigation confirms that they were acting in their capacity as attorneys. During the confidential interviews with school-district employees, the attorneys provided so-called 'Upjohn warnings' emphasizing that Sidley represented the School Board and not the employee and that the School Board had control over whether the conversations remained privileged. No third parties attended the interviews, the School Board received Lassar's report of the firm's findings during an executive session not open to the public, and the written executive summary that Sidley turned over to the Board was marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product.' If more were needed, affidavits submitted into the record by Lassar, his Sidley colleagues, and the School Board president emphasized that Sidley had been hired to provide legal advice in the context of the facts it uncovered during the internal investigation. Because the Sidley lawyers were hired in their capacity as lawyers to provide legal services – including a factual investigation – the attorney-client privilege applies to the communications made and documents generated during that investigation." (emphases added))

Case Date Jurisdiction State Cite Checked
2009-02-25 Federal
Comment:

key case


Chapter: 22.6

Case Name: Akzo Nobel Chems. Ltd. v. Comm'n of European Comtys., Nos. T-125/03 & T-253/03 (Ct. First Instance Sept. 17, 2007) (available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= CELEX:62003A0125:EN:HTML)
(assessing privilege claims for documents created in connection with an investigation conducted by Akzo Nobel and its affiliate; holding that internal documents would deserve privilege protection only if they were "exclusively" created for purposes of receiving legal advice, and their "sole aim" was to seek legal advice; also holding that Akzo's in-house lawyers based in Holland did not engage in privileged communications with Akzo employees, because the in-house lawyers were not independent; holding that the privilege did not protect documents sent by the general manager of an Akzo subsidiary to his supervisor; noting that the documents did not mention legal advice and were not sent to or from an outside lawyer; likewise finding that the privilege did not protect a business person's notes and communications with an in-house lawyer based in Holland)

Case Date Jurisdiction State Cite Checked
2007-09-17 Other

Chapter: 22.6

Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that Wilmer Hale's documents deserved privilege protection; "Plaintiffs argue that the Restructuring Report, similarly, was designed to address only factual questions, such as (1) How did HMS actually restructure delinquent loans during 2002?; (2) What did public disclosures and company policies say about HMS's restructuring of delinquent loans during the same period?; and (3) What were the differences, if any, between HMS's practices and either its policies or the Company's public disclosures? . . . Nowhere in that Report, Plaintiffs argue, did WilmerHale provide any legal analysis or recommendations that could be subject to the attorney-client privilege."; "The mere fact that WilmerHale's report included some factual findings does not establish that the entire report falls outside the scope of the attorney client privilege. As Defendants note, 'fact-gathering is an essential element in an attorney's formation of legal conclusions.'. . . The court has reviewed the Restructuring Report and finds that WilmerHale was retained to provide legal analysis and advice. Within the Restructuring Report . . . WilmerHale considered both the quantitative and qualitative materiality of variances from disclosed restructuring policies, and provided legal advice as to whether Household should take corrective action."; "Plaintiffs make much of the fact that a Report to the Board of Directors on 2003 Audit Committee Activities stated that the Committee retained WilmerHale to investigate 'the allegations made by Ms. Markell, in order to comply with the requirements of Section 10A of the Securities Act of 1934.'. . . See also 15 U.S.C. § 78-j1. Section 10A requires that '[i]f, in the course of conducting an audit . . . [auditors] become[] aware of information indicating that an illegal act . . . may have occurred, the firm shall . . . determine whether it is likely that an illegal act has occurred.' 15 U.S.C. § 78j-1(b)(1). This provision 'expanded independent accountants' watchdog duties,' such that KPMG was required to ascertain whether Household had engaged in any illegal acts that would directly and materially affect the Company's financial statements. . . . Nothing prohibited KPMG, however, from requesting legal assistance in meeting its obligations under 15 U.S.C. § 78j-1(b).")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 22.6

Case Name: Gruss v. Zwirn, 276 F.R.D. 115, 126 (S.D.N.Y. 2001)
(upholding privilege and work product claims for documents created during an internal corporate investigation undertaken by Gibson Dunn into accounting irregularities; finding that the primary purpose of the investigation was the need for legal advice; "[I]t is irrelevant that both firms' reports 'were prepared in part, for the business purpose of gaining advice on what to communicate to investors and other interested business parties, rather than legal purposes.'. . . There can be little question that both firms were engaged to investigate the accounting irregularities at the Zwirn Entities and advise management how to resolve those irregularities. . . . Their advice included instructions not only how to communicate with investors, but also on the legal ramifications of the accounting irregularities within the heavily-regulated world of investment contracts, the decision as to which employees should be held responsible and how those employees should be disciplined – advice with clear legal implications when the employee in question was party to a partnership agreement, as was Gruss . . . and both the possibility of, and strategies for future litigation. . . . Based on our review of the portions of the law firms' findings that have already been produced, it is clear that their communications with the Zwirn Entities were predominantly made with the purpose of giving legal advice. The fact that some of this advice resides in the gray area where legal advice shades into business advice does not change that conclusion.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2001-01-01 Federal NY

Chapter: 22.6

Case Name: Upjohn v. United States, 449 U.S. 383, 394 (1981)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding