Sixth Circuit Outlines Broad Application of Attorney-Client Privilege and Work-Product Doctrine to Internal Investigations

A recent decision from the U.S. Court of Appeals for the Sixth Circuit demonstrates the limited showing necessary to assert attorney-client privilege and work-product protections in the context of internal investigations.  In reversing a district court decision to allow discovery, a unanimous three-judge panel, led by Chief Judge Jeffrey Sutton, observed that “[w]hat matters for attorney-client privilege is not what a company does with its legal advice, but simply whether a company seeks legal advice.”  Citing to precedent, the court clarified that the question to be considered by a court is whether there was a decision to solicit legal advice irrespective of a company’s reason for wanting that legal advice.  Similarly, the court found that the question of whether the work-product doctrine applies hinges on whether there is any evidence to support the finding that anticipation of litigation was reasonable.  This decision provides useful guidance for protecting the attorney-client privilege and work-product doctrine in internal investigations of all types. 

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