Chapter 22 Internal Corporate Investigations and Insurance

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 22

INTERNAL CORPORATE INVESTIGATIONS AND
INSURANCE

22.1 INTRODUCTION

Courts have extensively analyzed attorney-client privilege protection for internal corporate investigations and insurance-related communications.

• Corporate investigations and insurance issues more frequently involve work product protection. ¹

22.2 EARLY DECISION IN THE INVESTIGATION CONTEXT

Corporations normally should consider before initiating an internal corporate investigation whether they might want to assert privilege protection.

• If corporations intend to disclose or rely on an internal corporate investigation, they may decide to forgo any privilege protection—and instead undertake a deliberately non-protected investigation.

22.3 COMMUNICATIONS ABOUT THE INVESTIGATION

Regardless of any privilege protection available for communications undertaken during internal corporate investigations, the privilege can cover otherwise protected communications about the investigations, or about the investigations' results.

22.4 FACTS AND LOGISTICS OF THE INVESTIGATION

Most courts provide little if any protection to internal corporate investigation's logistics. ²

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Some courts take a broader view, protecting even such logistical facts.

• This issue parallels what could be called "discovery about discovery"—adversaries' efforts to learn about litigants' actions in responding to discovery. ³

22.5 INTERNAL CORPORATE INVESTIGATIONS: INTRODUCTION

In the investigation context, as elsewhere, the privilege only protects communications relating to clients' request for legal advice.

• Thus, the privilege does not protect investigation-related communications simply because lawyers undertook the investigation.

Courts generally examine three aspects of internal corporate investigations in determining the attorney-client privilege's applicability: initiation, course, and use.

22.6 INITIATION OF THE INVESTIGATION

First, courts assessing privilege protection for internal corporate investigations examine the investigations' initiation. The privilege only protects communications during investigations primarily motivated by legal rather than business or other nonlegal reasons.

• In determining investigations' primary purpose, courts focus on what initiated the investigation—including any initiating documents.

Corporations which do not involve lawyers very early in the process can find it nearly impossible to later prove that the investigations were primarily motivated by their need for legal advice.

Courts can look elsewhere for such evidence.

• Some courts seem skeptical of corporations' post hoc explanations of why they undertook internal investigations.

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22.7 COURSE OF THE INVESTIGATION

Second, courts examine internal corporate investigations' course.

• Although privilege protection does not depend on lawyers' involvement in every interview, etc., the greater lawyers' involvement, the more likely courts are to extend

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