Jenner & Block

Client Alert: Mandatory Disclosure Internal Investigations May Be Found to Be Non- Privileged if Legal Function Not Sufficiently Involved

On March 6, 2014, the United States District Court for the District of Columbia ruled that no attorney-client privilege or work product protections barred release of documents related to a company’s internal investigation of alleged misconduct in awarding overseas subcontracts.  The authors, David A. Churchill, David M. Greenwald, Jessie K. Liu, and Cynthia J. Robertson, indicate that to overcome a finding that an investigation was performed as part of a routine corporate policy, companies should ensure counsel are sufficiently involved throughout the investigation and expressly state – in its policies, as well as its investigation records – that the communications were created at the direction of counsel for the purpose of providing legal advice, and, if relevant, in anticipation of litigation.