In the continuing fallout from the reprehensible Jerry Sandusky scandal, a PA appellate court rejected Penn State’s attorney–client privilege claim over documents that Louis Freeh’s law firm generated during its internal investigation. The reason?
The court found that there was no attorney–client relationship between Penn State and Freeh’s law firm, and, without this relationship, the privilege did not cover communications between Penn State Board of Trustees and Freeh’s firm. The court made this finding even though the Board Chair signed the engagement letter and the Board paid Freeh’s fees. Estate of Paterno v. NCAA, 168 A.3d 187 (Pa. Super. Ct. 2017). You may read the decision here.
The Forgotten Privilege Element
Regular readers of this blog know that the party asserting the attorney–client privilege must show three primary elements: a (1) confidential (2) communication made for (3) legal-advice purposes. We too often, though, presume—and forget about—a threshold element: a lawyer–client relationship. More…
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…
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…