Protecting Consultants' Work Product in Investigations

Given increased regulatory scrutiny and enforcement, companies today regularly conduct internal investigations to examine allegations of wrongdoing or to assess their business and legal risks. While doing so, counsel must consider the risk of collateral litigation in which investigation work product may be discoverable. Recent case law continues to offer guidance on applying privilege protections to internal investigations, and that analysis should be considered when retaining, and working with, experts, analysts, auditors, accountants, or others whose work product the company intends to protect from disclosure. This article utilizes a case study to explore the nuances in the law and offers guidance, based on recent case law, to protect a consultant’s work product in an internal investigation from disclosure.

Work Product Doctrine: Different Standards

The attorney work product doctrine is one of the cornerstones of the attorney-client relationship in the United States, protecting materials an attorney prepares for her client in anticipation of litigation. The doctrine is codified in Rule 26 of the Federal Rules of Civil Procedure, which protects from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.”¹ To apply the doctrine, courts consider: (1) whether the materials were prepared in anticipation of litigation, and (2) whether the document was prepared by a party’s representative. This protection is not absolute, however; work product may be discovered if the opposing party “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”² The U.S. Supreme Court explained the rationale for this rule in the landmark case of Hickman v. Taylor, writing that “[p]roper preparation of a client’s case demands that [a lawyer] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.”³ Generally, this protection extends to internal investigations conducted by counsel into potentially improper or illegal corporate conduct.⁴