The New Gray Zone? A Potentially New Approach to Attorney-Client Privilege in Internal Investigations for Current Employees Who Have Given Notice
The First Department's holding in 'BDO' is one that corporations and outside counsel conducting internal investigations and considering potential privilege issues should keep in mind.
February 08, 2023 at 11:00 AM
6 minute read
In September 2022, the First Department upheld an order to compel production of videotaped interviews with two company employees conducted as part of an internal investigation. See BDO USA v. Franz, 208 A.D.3d 1088, 1089 (1st Dep't Sept. 27, 2022). In doing so, the First Department held that BDO could not have had a reasonable expectation that these interviews would be privileged because the employees had given notice prior to their interviews. Without question, in determining the scope of attorney-client privilege, courts have already distinguished between current and former employees. See, e.g., Radovic v. City of New York, 642 N.Y.S.2d 1015 (N.Y. Sup. Ct. April 16, 1998). But here, the First Department considered what happens in the in-between—when employees are employed with the company but have already tendered their resignation. The First Department's holding is one that corporations conducting internal investigations or otherwise considering potential privilege issues should keep in mind going forward.
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