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William F. Johnson William F. Johnson

Internal investigations are a staple in today’s corporate environment. Often, when the conduct under investigation involves senior management or sensitive issues, a company’s board of directors will authorize and form a special committee of directors to oversee and direct the investigation. To ensure that the ensuing investigation is independent and thorough, the special committee will engage outside counsel. (Moreover, to prevent even the appearance of impropriety or conflict, special committee counsel should not typically be the company’s regular counsel or counsel who has performed recent, material work for the company. See, e.g., Lahm v. Tremont, 694 A.2d 422, 426, 429-30 (Del. 1997) (applying the same logic in the adviser and expert context).) Of the many important issues arising during such investigations, protection of privileged material is paramount. This article explores the contours of the attorney-client privilege as it applies to special committees’ internal investigations, including with respect to employee interviews and board briefings.

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