Many corporations and their lawyers assume that both the
attorney-client privilege and the work product doctrine will
protect communications and documents created during an internal
corporate investigation, as long as a lawyer directs and supervises
the investigation. However, courts usually reject blanket privilege
and work product claims, and undertake a more detailed
analysis.
In Woodmen of the World Life Insurance Society v. U.S. Bank
National Ass'n, No. 8:09CV407, 2012 U.S. Dist. LEXIS 12462
(D. Neb. Feb. 2, 2012), the Boston law firm of Goodwin Procter and
accounting firm Deloitte undertook an investigation into a bank
employee's possible misrepresentations about mortgage-backed
securities. Despite the bank's and Goodwin Procter's
arguments to the contrary, the court found that the attorney-client
privilege did not protect documents created during the
investigation, because the bank had "fail[ed] to make a
sufficient showing that the investigation was committed to Goodwin
Procter . . . for legal advice" rather than to aid in business
decisions. Id. at *20. The court also rejected the
bank's work product claim. Among other things, the court noted
that the bank followed Goodwin Procter's and Deloitte's
recommendations by reimbursing investors identified as being harmed
by the possible misrepresentation, thus "presumably decreasing
the likelihood of litigation." Id. at *28.
Significantly, the court rejected conclusory statements in what it
labeled as a "self-serving" declaration the bank filed in
support of its privilege and work product claims. Id. at
*27.
The court's rejection of the bank's privilege and work
product claims highlights some courts' skepticism about global
privilege and work product protection for internal corporate
investigations.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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