As indicated in previous Privilege Points, courts analyzing both the privilege and work product protections possibly applicable to internal corporate investigations usually examine (1) the documents initiating the investigation, (2) the lawyers’ role in the course of the investigation, and (3) the company’s use of the investigation results. The same standards apply to other institutions’ internal investigation.
In EEOC v. City of Madison, No. 07-C0349-S, 2007 U.S. Dist. LEXIS 70647 (W.D. Wis. Sept 20, 2007), the court found both the attorney-client privilege and the work product doctrine inapplicable to Madison’s internal investigation of sexual harassment. Among other things, the court pointed to initiating documents indicating that Madison’s mayor wanted to “‘ensure that the work environment at [the city facility] in the wake of [one official’s] departure was respectful and free of harassment.'” Id. at *7 (internal citation omitted). The court explained that “[t]hese statements do not support that the investigation was performed because of the prospect of litigation, i.e., for the specific allegations raised by [a complaining employee], but instead was done for ordinary business purposes.” Id. The court also noted that “the City Attorney’s office did not itself perform or control the investigation but merely was a source of advice during the investigation.” Id. at *7-8.
Any institution conducting an internal investigation should bear in mind the type of analysis a court might later conduct.