Some lawyers (and most clients) believe that the attorney-client privilege will automatically protect corporate investigations ordered by in-house lawyers — and that the work product doctrine will always protect investigations into serious industrial accidents because litigation might ensue. Both of these assumptions are wrong.
In Harpster v. Advanced Elastomer Systems, L.P., 2005 Ohio 6919 (Ohio Ct. App. 2005), a company’s general counsel ordered an investigation within hours of an industrial accident in which an employee lost his hand. When the employee later sued the company and sought investigation-related documents, the court denied attorney-client privilege protection. The court pointed to the company’s selection of a non-employee to investigate the accident, and its assurance to the injured worker that “the investigation was conducted in the course of ordinary business.” Id. at ¶ 22. The court also denied work product protection, pointing to a letter from the company’s general counsel to the worker’s lawyer indicating that it is the company’s “standard practice to investigate an accident.” Id. at ¶ 14. As the court explained, “it is not even clear that [the company’s in‑house counsel] had to request the investigation or provide any guidance regarding the investigation, as [the company] would have conducted it anyway.” Id.
Companies seeking privilege or work product protection for internal investigations must take the right steps throughout the process – simply having a lawyer order the investigation is not sufficient.