When Is An Internal Corporate Investigation Protected By The Attorney-Client Privilege?

By: Frank H. Stoy

The United States Court of Appeals for the D.C. Circuit recently overturned a district court ruling that, if allowed to stand, would have limited the protection of the attorney-client privilege in corporate internal investigations. The case, In re Kellogg Brown & Root, Inc., 2014 U.S App LEXIS 12115 (D.C. Cir. 2014), involved a company’s challenge of a district court’s order to produce documents from an internal investigation by its legal department. In an unprecedented move, the district court found that the attorney-client privilege applied to communications only where those communications were made solely for the purpose of obtaining legal advice. Under this standard, the company was required to produce its internal investigation documents because the investigation in question was conducted not just to obtain legal advice, but also for business purposes related to compliance with government regulations.

The D.C. Circuit Court of Appeals flatly rejected this approach, holding that so long as one of the significant purposes of a communication was to obtain or provide legal advice, the privilege applies even where the investigation has been conducted for both business and legal reasons. In addition, according to the Kellogg analysis, the privilege applies regardless of whether the investigation was conducted by inside or outside counsel or non-attorneys, as long as the investigation was at the direction of the law department. In light of this standard, counsel should be diligent in documenting that a significant purpose of any investigation is to obtain or provide legal advice in order to ensure that the privilege is preserved.

News & Events

Related News

November 13, 2019

Pietragallo Gordon Alfano Bosick & Raspanti, LLP is pleased to announce the election of its newest partners: David Lamm, Leslie Mariotti, and Frank Stoy. Bill Pietragallo said, “In recognition of and in response to their legal skills, committed industry and professional bearing, I am pleased to announce that David, Leslie, and Frank have been elected… Read more »

Read More

Upcoming Events

January 27, 2020

Pamela Coyle Brecht has been invited to speak at this winter’s ACI’s False Claims and Qui Tam Enforcement program, taking place on January 27-28th at the Park Lane Hotel in NYC. This advanced forum on False Claims and Qui Tam Enforcement is designed to provide up-to-date guidance and analysis from the most respected false claims… Read more »

Read More
February 19, 2020

The Pietragallo Law Firm and S-E-A Limited are co-hosting an event on Wednesday, February 19, 2020 titled, “Defending Trucking and Vehicle Cases in the 21st Century.” During this dynamic event which begins at 11:30am, industry leaders will review a variety of topics unique to the trucking industry including: “Accident Reconstruction through 21st Century Visualization” and… Read more »

Read More
View More News & Events