Chapter 43 Protection for Internal Corporate Investigations

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

Chapter 43

PROTECTION FOR INTERNAL CORPORATE INVESTIGATIONS

43.1 INTRODUCTION

Courts have extensively analyzed work product protection for internal corporate investigations and insurance-related documents.

43.2 INTERNAL CORPORATE INVESTIGATIONS

Corporations can sometimes claim attorney-client privilege protection for investigation-related communications. ¹

Corporations can sometimes also claim separate work product doctrine protection.

• Such corporations must satisfy the "litigation," "anticipation," and "motivation" work product elements. ²

Courts assessing corporations' work product claims examine internal corporate investigations' initiation, course, and use.

43.3 INITIATION OF THE INVESTIGATION

First, courts examine internal corporate investigations' initiation. [43.301]

The work product doctrine usually does not protect investigations initiated by some external or internal requirement, because those usually do not satisfy the motivation element. [43.302]

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Similarly, the work product doctrine usually does not protect investigations undertaken in corporations' ordinary course of business, for the same reason. [43.303]

Even investigations undertaken in extraordinary circumstance, rather than in the ordinary course of business, will not deserve work product protection unless they satisfy the motivation element. [43.304]

The work product doctrine only applies to investigations motivated by litigation or anticipated litigation, not those which result in such anticipation. [43.305]

Corporations seeking work product protection normally must prove that they undertook a qualitatively different type of investigation than they otherwise would have, because they anticipated litigation. [43.306]

Any client "representatives" can initiate work product-protected investigations, but lawyers' involvement increases the chance of successfully asserting work product protection. [43.307]

Some courts review documents articulating why corporations initiated their internal corporate investigations. [43.308]

• Some courts myopically look only at such initiating documents' "four corners."

Some courts appropriately allow corporations to also rely on affidavits or testimony demonstrating that anticipated litigation motivated their investigations. [43.309]

• However, some courts view such post-act evidence skeptically.

43.4 COURSE OF THE INVESTIGATION

Second, courts examine internal corporate investigations' course. [43.401]

Lawyers' intensive involvement increases corporations' likelihood of successfully asserting work product protection. [43.402]

• Ironically, corporations which always involve their lawyers in such internal corporate investigations may face difficulty proving that they undertook a qualitatively different investigation because they anticipated litigation.

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Courts also examine how corporations generate documents during internal investigations. [43.403]

Some courts review the fruits of such corporate investigations, looking for some evidence of corporations' motivation in those investigations' reports. [43.404]

43.5 USE OF THE INVESTIGATION

Third, courts examine internal corporate investigations' use.

• Corporations' business-oriented use of such results undercuts their work product claims.

43.6 "MORPHED" INVESTIGATIONS WITH CHANGING MOTIVATIONS

In some situations, corporations might initiate investigations in the ordinary course of their business, but later begin to anticipate litigation—then claim that the investigations "morphed" into work product-protected investigations.

• Some courts accept such arguments, while some courts express skepticism.

43.7 SEPARATE OR SUCCESSIVE INTERNAL INVESTIGATIONS

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