While attorney-client privilege can protect many internal documents, recent court decisions highlight the need to explicitly invoke this protection.

As many US policies now require an increased level of internal investigations and self-reporting, companies should ensure their communications and documentation explicitly preserve their right to invoke the attorney-client privilege. Healthcare providers, financial institutions, public companies and organizations operating under Corporate Integrity Agreements or other government settlement terms that require mandatory disclosures should follow a few simple precautions to avoid becoming the targets of internal investigation related litigation.

Introduction -

A cornerstone of the attorney-client privilege is that for the privilege to apply to a communication, the communication must have been made for the purpose of obtaining legal advice. Corporate internal investigations are routinely protected from disclosure under this principle. But when company counsel asserts the privilege to protect an internal investigation that was conducted under standing corporate policies or pursuant to certain regulatory requirements, the privilege assertion may be challenged in court. In these cases, civil litigants or other third parties who are trying to obtain company records regarding an internal investigation (such as emails, memos and other reports) contend that the investigation is not privileged because it was conducted for business purposes, and not for the purpose of obtaining legal advice.