Federal regulators continue to focus on anticorruption enforcement. In the first half of 2013, the Department of Justice initiated more U.S. Foreign Corrupt Practices Act (FCPA) enforcement actions than it did in all of 2012. Globally, more countries amended or enacted anticorruption legislation. Accordingly, multinational companies remain committed to enhancing their compliance measures, including by undertaking internal investigations, risk assessments, and anticorruption related internal audits. The findings of such compliance reviews may be protected by privilege, but establishing and preserving that privilege is nuanced. This article discusses precautions for establishing and maintaining privilege protections.1

Privilege Issues in Internal Investigations

Of the various actions taken by companies, internal investigations by counsel into potentially improper activity generally are understood to be legal in nature. As a consequence, related communications and documentation likely can be protected by the attorney-client privilege or work product doctrine, even if some of the tasks involve accounting, financial, or other nonlegal tasks central to the legal review.2 For the privilege to apply, the investigation must be structured, scoped and conducted so as to effectuate a confidential review in furtherance of providing legal advice to the company. The primary purpose of communications must be to provide legal rather than business advice,3 and a document protected or sought to be protected by the work-product doctrine must be created in anticipation of litigation rather than in the regular course of business.4 Several privilege-related issues often arise in internal investigations, requiring additional precautions.

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