Sloppy Investigation Practices Can Forfeit Important Protections

February 13, 2002

Corporations often ask investigators and lawyers to conduct internal investigations. Investigators’ notes normally deserve attorney-client privilege protection if the investigator is gathering facts to assist the lawyer in rendering legal advice to the company.

In Welland v. Trainer, No. 00 Civ. 0738 (JSM) 2001 U.S. Dist. LEXIS 15556 (S.D.N.Y. Sept. 28, 2001), a court found that investigators’ notes prepared before a lawyer was involved in the investigation did not deserve privilege protection, while those prepared after the lawyer’s involvement started would receive privilege protection.

Decisions like that in Welland highlight the wisdom of involving a lawyer in even the earliest stages of a corporate investigation. Waiting until later can forfeit important protections.