News & Analysis as of

Upjohn Warnings

Who Can Waive Corporations' Privilege Protection?

by McGuireWoods LLP on

In Upjohn states, corporations' privilege can protect (1) communications in which corporate employees at any hierarchical level give the company's lawyer facts she needs, and (2) such lawyer's advice given to any employees...more

Court Affirms the Comforting Bevill Backstop

by McGuireWoods LLP on

Lawyers representing corporations should in nearly every circumstance provide an Upjohn warning to avoid accidentally creating attorney-client relationships with company employees. Upjohn v. United States, 449 US 383 (1981)....more

Who is the Client for the Purposes of Legal Advice Privilege? English High Court Confirms Narrow Scope of Legal Advice Privilege

A recent decision out of the English High Court narrows the scope of the legal advice privilege, which will have important implications for US companies that have ties to the UK. Please see full Alert below for more...more

Attorney-Client Privilege in Washington State No Longer Applies When Employment Ends

by Bracewell LLP on

In order to preserve the attorney-client privilege, counsel who conduct internal investigations begin employee interviews with an “Upjohn Warning”—a disclosure indicating that counsel represents the employer, not the...more

Conducting an Internal Investigation in the PRC? Protect Your Company From the Outset

by Kobre & Kim on

Requests by a company’s counsel to interview company employees as part of internal investigations into potential misconduct are commonplace. But when a U.S. company and its counsel seek to interview citizens working for the...more

Washington Supreme Court Creates Bright-Line Rule - Postemployment Communications Between Former Employees and Corporate Counsel...

by Holland & Knight LLP on

The Washington Supreme Court held in a 5-4 vote that attorney-client privilege does not apply to communications between corporate counsel and former corporate employees, even if the communications concern what the employees...more

Insuring Against Yates: The Impact on D&O Insurance

by McDermott Will & Emery on

The Yates Memo has many landscape-changing implications for corporate investigations, including the need for enhanced Upjohn warnings and the potential suppression of joint-defense agreements between corporations and their...more

Government’s Penn State Investigation Produces Lessons for In-House Counsel

The fallout at Penn State University in the wake of the Jerry Sandusky child-sexual-abuse scandal, including the victims’ suffering, Sandusky’s criminal conviction, the firing and subsequent death of legendary Coach Joe...more

Sandusky Meets Upjohn: A Reminder To In House Counsel

Companies facing a crisis often turn to in house counsel to investigate the facts that precipitated the crisis. In house counsel’s first step often is to interview corporate employees with knowledge of those facts....more

What is the "Need to Know" Standard?

by McGuireWoods LLP on

Under the majority Upjohn approach, the attorney-client privilege can protect lawyers' communications with any level of corporate client employee — if the lawyers need the employees' factual information before giving their...more

Keep This Between Us—and the Government: Confidentiality of Witness Interviews in Corporate Internal Investigations

by Carlton Fields on

Internal investigations into suspected employee wrongdoing are particularly tricky for in-house counsel, who must protect corporate confidentiality, be mindful of regulatory reporting requirements, and respect labor...more

Beware the Feds: Emerging Risks to Health Care Executives Under the Yates Memo

by Reed Smith on

Last month’s “Yates Memo” from the Department of Justice (DOJ) promises to be a game-changer in the world of government investigations and enforcement activity. While several U.S. Attorney Offices had been applying many of...more

New DOJ Corporate Prosecution Guidelines

On September 9, 2015, United States Deputy Attorney General Sally Yates released a memorandum titled “Individual Accountability for Corporate Wrongdoing,” the latest in a series of corporate prosecution guidelines written by...more

D.C. Circuit Once Again Upholds Privilege Over Internal Investigation Documents

by Saul Ewing LLP on

In United States ex rel. Barko v. Halliburton Co. et al., a qui tam suit we previously covered, the District of Columbia Circuit Court of Appeals once again ruled that defense contractor KBR Inc.’s internal investigation...more

Department of Justice Mandate: Prosecute Individuals for Corporate Wrongdoing

by Baker Donelson on

On September 9, 2015, Sally Quillian Yates, the Deputy Attorney General of the U.S. Department of Justice (DOJ), issued a directive to the leaders of the divisions of the DOJ and to U.S. Attorneys to combat corporate fraud by...more

Whew! That Was Close – D.C. Circuit Reaffirms Application of Attorney-Client Privilege and Attorney Work Product Doctrine in...

On August 11, 2015, the U.S. Court of Appeals for the D.C. Circuit issued a writ of mandamus supporting the robust applicability of the attorney-client privilege and attorney work product doctrines in the context of False...more

Three Key Takeaways from DOJ’s New Yates Memo on Individual Accountability for Corporate Wrongdoing

by Morrison & Foerster LLP on

During a September 10, 2015 conference at New York University, Deputy Attorney General (DAG) Sally Quillian Yates announced new Department of Justice (DOJ or the Department) policy that could significantly affect the way that...more

DOJ Focuses on Individuals in Corporate Wrongdoing

by Burr & Forman on

United States Deputy Attorney General Sally Q. Yates issued a September 9 memo directing increased focus on individual culpability in matters of corporate wrongdoing. The memo highlights six policy directives – some existing,...more

“Individual Accountability for Corporate Wrongdoing”: The Yates Memo and the DOJ’s Focus on Individuals

by Alston & Bird on

On September 9, 2015, the Department of Justice issued a memo (“Individual Accountability for Corporate Wrongdoing”) to federal prosecutors nationwide implementing new policies that—for the first time—prioritize the...more

D.C. Circuit Confirms: Attorney-Client Privilege Applies to Internal Investigations of Whistleblower Complaints Conducted at the...

The ability to preserve privilege for highly sensitive internal investigations conducted at the direction of attorneys is alive and well. In a closely watched decision on the scope of the attorney-client privilege as applied...more

Appeals Court Decision Protects Attorney-Client Privilege in Internal Investigation

by Faegre Baker Daniels on

In In re Kellogg Brown & Root, Inc., et al., No. 14-5319 (D.C. Cir. August 11, 2015), the Court reversed a district court’s ruling that KBR waived these protections by using materials created in the course of a privileged...more

D.C. Circuit Weighs In Once Again in KBR Privilege Fight

by Snell & Wilmer on

In the ongoing saga which has been the subject of a previous post on this blog, a three-judge panel of the D.C. Circuit Court of Appeals has once again found that the district court erred in ordering the production of the...more

A Review of Recent Whistleblower Developments

by Foley & Lardner LLP on

SEC Awards Another Whistleblowing Compliance Officer - On April 22, 2015, the Securities and Exchange Commission (SEC) announced an award between $1.4 and $1.6 million to a compliance officer who provided information...more

Employer investigations

by Allen & Overy LLP on

The case concerned four police officers' claims against the Metropolitan Police Commissioner (the Commissioner) (their quasi-employer) for the way the Commissioner handled a claim by a suspected terrorist alleging police...more

Internal Investigations: The Three C’s – Confidence. Credibility. Cost.

by Locke Lord LLP on

In this issue: - THE THREE C’S — CONFIDENCE, CREDIBILITY AND COST - WHO CONDUCTS THE INVESTIGATION? - SCOPE OF THE INVESTIGATION - MINDSET AT THE OUTSET OF AN INVESTIGATION - THE NEED FOR...more

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Cybersecurity

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