Understanding the boundaries of legal privilege in corporate internal investigations is critical. When counsel, either internal or external, misunderstands these boundaries, the result can be disastrous....more
Boards of Directors and management at companies of all sizes face a common problem: they need to make decisions that are best for the company and in order to do so they need to know the facts — the pleasant and the unpleasant...more
As an initial step, an audit of an internal investigation program requires a detailed understanding of the operation of a company’s internal investigation program. ...more
Part 1 of this two-part series explored the five steps to consider before and at the start of any internal investigation. The next five steps focus on conducting and concluding the investigation and will help guide a...more
In Part 2 of our series on health care investigations, Mark Rush and John Lawrence continue the discussion on internal investigations. Specifically, the episode walks through how to conduct an internal investigation,...more
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
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
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
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
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
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
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
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
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
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
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
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 SPEED ...more
In a recent post, we discussed the D.C. Circuit’s consideration of the District Court’s decision in U.S. ex.rel Barko v. Halliburton Co. et al., Case No. 05-01276 (D.D.C. 2014), which provided an alarming perspective on the...more
A D.C. Circuit decision (In re Kellogg Brown & Root, Inc.) has confirmed privilege over employee statements during in-house investigations. Can the world take comfort? This article examines privilege in the context of...more
A recent decision from the D.C. Circuit Court of Appeals, one of the most important courts in the nation, reaffirmed that a company’s internal investigations—if structured properly—are protected from disclosure in litigation...more
The attorney-client privilege has long protected attorney-client communications made during the course of an internal investigation. Upjohn Co. v. United States, 449 U.S. 383 (1983). Of course, the privilege encourages “full...more
Over thirty years ago, the Supreme Court clarified how the attorney-client privilege applies to records of internal investigations in Upjohn v. United States, 449 U.S. 383 (1981). Yet putting the principles of Upjohn into...more