A wave of recent New York cases has illuminated the scope of the attorney-client privilege and work product doctrine in the in-house context. In-house and outside counsel should be mindful of the various contexts in which privilege issues may arise when corporate counsel take action, as courts have placed limits on the extent to which such actions will be precluded from disclosure during litigation.
Internal Investigations
Corporate internal investigations often entail extensive participation of in-house and outside counsel. And in Upjohn v. U.S., 449 U.S. 383, 394 (1981), the U.S. Supreme Court expanded the scope of attorney-client privilege to the corporate investigation context. However, two recent cases demonstrate that New York courts remain faithful to the strict guidelines of Upjohn and are unwilling to push the boundaries of the privilege extended in that case.
