In Daily Journal Article, Akin Gump Employment Lawyers Examine Privilege in Attorney-Led Investigations

June 18, 2018

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Daily Journal has published the article “Maintaining privilege in attorney-led investigations,” written by Akin Gump partner Gregory Knopp, senior counsel Galit Knotz and associate Stephanie Priel, all members of the firm’s labor and employment practice. The article addresses the issue of whether a report based on an investigation by an attorney is protected from disclosure to third parties under California law.

Knopp, Knotz and Priel begin by writing that, amid a wave of workplace misconduct allegations, many companies are reevaluating their investigation practices. Some, they write, “are increasingly hiring outside counsel to run an investigation when the nature of allegations requires legal expertise or has the potential to subject the company to substantial legal exposure and negative publicity.” Unfortunately, that does not “automatically cloak the investigation under the protections of attorney-client and work product privilege.”

The article then looks at when an investigation is privileged, citing several court rulings that have helped shape the definition, and how privilege is applied. One area that remains unclear, the authors note, “is whether outside counsel’s contemporaneous interview notes are privileged,” though they add that “[e]ven if interview notes are not protected under the attorney-client privilege, they may be protected from disclosure under California’s attorney work product rule.”

Finally, the authors point out that, in some instances, the contents of an otherwise privileged communication may be disclosed. “Whatever its reason,” they write, “a company should consider how a waiver operates before voluntarily disclosing privileged communications.”

To read the full article, please click here.

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