As indicated in previous Privilege Points, courts analyzing possible attorney-client privilege and work product protection for internal investigation materials focus on (1) the initiation of the investigation (analyzing whether it was primarily motivated by legal advice and anticipated litigation); (2) the course of the investigation (focusing on lawyers’ involvement); and (3) the use of the investigation results.
In Sandra T.E. v. South Berwyn School District 100, 600 F.3d 612 (7th Cir. 2009), the Seventh Circuit reversed a district court’s holding that neither the attorney‑client privilege nor the work product doctrine protected material created by Sidley Austin during its investigation of an elementary school teacher’s alleged molestation of students. In protecting the Sidley Austin material, the circuit court focused on the engagement letter between Sidley and the school board – which indicated that Sidley had been hired to investigate the incidents and “‘provide legal services in connection with'” the specific representation. Id. at 616. The Seventh Circuit bluntly stated that the district court had “all but ignored the engagement letter, which should have been the most important piece of evidence.” Id. at 619.
When conducting a protected investigation, companies and their lawyers should remember the key elements that courts examine – including the initiating document. Some companies articulate the purpose of an investigation before involving its lawyers, which unfortunately can forfeit the chance to articulate the proper purpose of the investigation.