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.
DOJ Deal More…
A significant privilege affray is unfolding over Baylor University’s retention of the Pepper Hamilton law firm to investigate Baylor’s handling of sexual-assault complaints.
The question before the USDC in Waco is whether the attorney–client privilege protects from discovery Pepper Hamilton’s witness interviews and documents reviewed. The court’s upcoming decision may offer important lessons to organizations conducting internal investigations, including how to handle a post-investigation release of information.
You will recall that, following Pepper Hamilton’s investigation, Baylor fired its football coach, Art Briles, and demoted its president, Judge Kenneth Starr. And while Pepper Hamilton prepared a list of “Recommendations,” available here, it did not deliver a formal written report of its investigation. You may read more about the so-called “lack of a paper trail” in this New York Times article.
The plaintiffs in Jane Doe v. Baylor University, No. 6:16-cv-173-RP-JCM (USDC WD Tex.), a Title IX case, filed a motion to compel Baylor to “produce all materials provided to or produced by Pepper Hamilton.” In essence, the plaintiffs seek a ruling that the attorney–client privilege does not protect the law firm’s investigation materials, and assert two arguments in support. More…
A Connecticut trial court held that the attorney–client privilege covers a defendant company’s investigation-related documents created at the direction of an in-house lawyer. The court rendered the decision even though the in-house lawyer worked for the company’s parent corporation rather than the defendant company itself. Blake v. Harvest New England, LLC, 2017 WL 1334287 (Conn. Super. Ct. Mar. 17, 2017). You may read the decision here.
Harvest New England, LLC, a Delaware entity with its principal place of business in Connecticut, is a wholly owned subsidiary of Harvest Power, Inc., a Delaware corporation with its principal place of business in Massachusetts. Matthew Vittiglio, licensed in Massachusetts, was “Vice President, Corporate Counsel,” or General Counsel, for Harvest Power—not the subsidiary.
Following an automobile accident in Connecticut involving a driver–employee of the Connecticut LLC, the Massachusetts corporation’s General Counsel, Vittiglio, directed an investigation that led to the creation of two primary documents that would later become the subject of a privilege dispute. More…