When a client decides to conduct an internal investigation, one of the threshold responsibilities of the client’s advisors ordinarily is to structure the investigation in a manner that maximizes the client’s flexibility to assert attorney-client privilege and work product protection over the investigation and its conclusions. Chief among the initial considerations will be (a) after assessing potential conflicts, determining who will oversee and who will conduct the investigation, (b) defining the scope and objectives of the investigation, and (c) deciding when and with whom the results are reported and subsequently shared, and in what form. This column focuses on recent guidance on the circumstances under which materials created in a company’s internal investigation are subject to the attorney-client privilege and work product protection.
Last month, the U.S. District Court for the District of Columbia ruled that certain reports relating to a company’s internal investigation were not entitled to either attorney-client privilege or work product protection. In two decisions in Barko v. Halliburton,1 addressing a challenge by a former employee bringing a qui tam action, the court concluded that investigative documents were not privileged because the defendants failed to establish that the documents were created for the primary purpose of seeking legal advice, and were not attorney work product because they were not created in anticipation of litigation.
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