If handled correctly, in-house counsel may delegate an internal investigation to a non-legal department. The question arises whether the attorney–client privilege applies to investigation-related emails between non-attorney employees. These type of emails often appear business-related and far removed from the company’s legal department.
In Crabtree v. Experian Info. Solutions, Inc., 2017 WL 4740662 (ND Ill. Oct. 20, 2017), the USDC for Illinois’ Northern District held that the corporate attorney–client privilege applies to emails between non-attorney employees so long as a lawyer has “some relationship to the communication” and the email would reveal the “substance of a confidential attorney–client communication.”
This case, available here, provides a short but good read on this tricky internal-investigation privilege issue.
In-House Counsel Delegates Internal Investigation
After receiving confidential information about one of its users, Experian’s in-house counsel asked its compliance division to conduct an internal investigation and report back to the legal department. The investigation included emails between non-attorney employees, and the plaintiff in a subsequent putative FCRA class action moved to compel these communications. More…
Foreign corporations with a significant U.S. presence increasingly face this question—which country’s privilege law applies when their U.S. lawyers communicate with the companies’ foreign employees? The SDNY confronted this choice-of-privilege-law issue where a “principally” U.S. law firm conducted an internal investigation for a German company. In re: Ex Parte Application of financialright GmbH, 2017 WL 2879696 (SDNY June 22, 2017). You may read the decision here. Let’s discuss. More…
May you disclose a privileged document to a government-enforcement agency and, later, successfully claim that the privilege precludes disclosure to an adversary in a civil proceeding? Generally, there is no common-law selective-waiver doctrine, but the SDNY, in In re: Ex Parte Application of financialright GmbH, 2017 WL 2879696 (SDNY June 23, 2017), found no privilege waiver when Volkswagen’s lawyers disclosed privileged information to the Justice Department under a Non-Disclosure Agreement. You may read the opinion here.
Internal Investigation into Emissions Scandal
Volkswagen’s 2015 emissions scandal—where it inserted software to circumvent U.S. emissions tests—is well known. VW retained Jones Day, which conducted an extensive factual investigation as part of its representation. Jones Day analyzed millions of documents and interviewed hundreds of VW employees.
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