NCJ Number
129592
Date Published
1991
Length
14 pages
Annotation
Corporations have increasingly relied on internal investigations to identify possible fraud or misconduct and to avoid more vigorous government investigations; protecting the confidentiality of internal investigative reports poses a significant challenge.
Abstract
In applying the attorney-client privilege to corporations, courts have historically applied different approaches to determine what communications are protected. The U.S. Supreme Court has rejected any set framework and has held that the corporate privilege's scope must be decided on a case-by-case basis. Apart from the attorney-client privilege, some courts have held that the work-product privilege can be invoked to protect the results of an internal corporate investigation from subsequent disclosure. The work-product doctrine protects the mental impressions or memoranda of attorneys created in anticipation of litigation. Unlike the attorney-client privilege which is absolute, the work-product privilege may be overcome by showing a substantial need for the material and undue hardship in obtaining it elsewhere. There is no clearcut way a corporation can assure that investigative reports will be privileged or that the corporation will retain its privilege if limited disclosure is made. Many courts have appropriately recognized that internal corporate investigations are in the public interest and have sought to provide corporations with some degree of protection. Attorneys conducting internal investigations and corporate management personnel authorizing them must take steps at all investigative stages to ensure the material will not face a disclosure order. 50 notes