An internal investigations is an important mechanism an organization can use to address an allegation of wrongdoing, determine legal liability, identify individuals or parties with culpability, comply with regulatory requirements, develop corrective measures and enhance operational efficiencies. Buckner is pleased to begin a blog series highlighting best practices, strategies and techniques that can be used by organizational leaders and counsel during an internal investigation. Today’s post will cover ways to protect the privileged aspects of the investigative record.
Generally, most laws, regulations and codes do not ensure an internal investigation can remain confidential. However, an organization can utilize several steps to increase the likelihood a court or arbitration panel will determine investigative materials generated during the process are privileged and, therefore, exempt from disclosure to other parties.
1. An organization should commission an investigation for the purpose of obtaining legal advice and assessing litigation risk, and to state the purpose in writing at the initiation of the investigation. Further, the legal purpose should be communicated throughout the investigation, including prior to witness interviews and on pertinent investigative documents (e.g., reports, memoranda).
2. An attorney—the best case would be to retain outside counsel—should plan and conduct the internal investigation so a claim of legal privilege can be properly asserted by an organization.
Sources: William A. Roberts, III, Mark B. Sweet and Richard B. O’Keeffe, Jr., “Six Steps to Prevent Disclosure of Internal Investigation Reports” (March 20, 2014), Thomas C. Hill, Daryl M. Shapiro, Timothy J.V. Walsh and Rebecca Carr Rizzo, “Recent Decision Reminds Companies to Use Best Practices to Protect Their Internal Investigations” (May 20, 2014).