Utilizing 6th Circ.’s Expanded Internal Investigation Protection

A recent federal appellate court decision demonstrates one way that businesses can use a very limited showing to protect internal investigations from discovery in commercial litigation.

In reversing a district court decision to force disclosure, a unanimous U.S. Court of Appeals for the Sixth Circuit panel led by Chief U.S. Circuit Judge Jeffrey Sutton in In re: FirstEnergy Corp. observed on Aug. 7 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.” Similarly, the court found work-product protection based only on circumstantial evidence of anticipated litigation.

Savvy clients looking to protect internal investigations can use this precedent to their advantage, while those looking to force production will need to employ a carefully calibrated approach.

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