In a discovery dispute, a U.S. District Court of Miami, Florida, compelled production of a law firm’s investigation it had performed for a company. That is, the corporate internal investigation work product/attorney client privilege was waived because the court found that the attorneys had given the Government an “oral download” of witness interview notes and memoranda that came from the company’s executive team and other employees. This is an international and established law firm that the trial judge found had blown privilege for its client.
In so finding, the Court found little or no substantive distinction for waiver purposes between the actual physical delivery of the work product notes and memoranda and reading or orally summarizing those items to the Government. The waiver was found to have occurred only to the interviews and memoranda summarized, not the entire investigation. The Court found that work product is generally waived when it is disclosed in a manner that is either inconsistent with maintaining secrecy against opponents or increases the potential adversary to obtain protected information. Notably, the party asserting the privilege has the burden of establishing and maintaining it. For a link to the case, please click here: secvherrera–waiveropinion
As someone who has performed countless internal investigations, as well as cleaned after others’ botched jobs, established and followed protocols are essential. Without even hitting the Yates Memo and FCA cases, the protection of privilege is paramount to be effective in the role in digesting facts and theories as well as having open communication with the client. Every company that has hired outside counsel to perform an internal investigation, counts on that counsel to do the job correctly and without blow back on the client.
Unfortunately, that is not always the case. It is okay and a good practice to ask your attorney what his/her experience is on doing the investigations and any similar negative experiences. In short, interview the investigator. Experienced attorneys who know what they are doing are critical to successful investigations-bravado and size of the firm should not be relied upon instead of solid legal work as a determinative factor in hiring an attorney for an internal investigation. Simply put, know your attorney and do not let Cousin Vinny have a shot at making a crisis worse.