Federal and State Courts Issue Helpful Investigation-Related Decisions: Part II

September 6, 2023

Last week’s Privilege Point described a federal court case holding that explicit reliance on a consultant’s investigation waived fact work product protection related to the investigation — but not opinion work product protection.

About two weeks later, in University of Texas System v. Franklin Center for Government & Public Integrity, the Texas Supreme Court issued a very favorable investigation-related decision, finding that Kroll investigators were protected as a “lawyer’s representative” because they acted under the direction of UT’s General Counsel; Kroll’s investigation into allegations of undue influence in the University’s admissions process deserved privilege protection, as shown by affidavits “prepared after the fact, as are most affidavits prepared in the litigation context.” No. 21-0534, 2023 Tex. LEXIS 627, at *25-26 (Tex. June 30, 2023). The Court then found that the publication of Kroll’s report did not waive privilege as to “all the privilege-log documents” (as the lower court had ruled), but instead only triggered a subject matter waiver requiring production of: (1) internal UT privileged emails, but only to the extent that Kroll’s published report “contains quotes or very specific paraphrases of the emails”; (2) Kroll’s interview notes, but only to the extent that the Kroll report “amounted to disclosure of a ‘significant part’ of the [interview] communication.” Id. at *6-7, *30, *33.

Lawyers arranging for internal corporate investigations should take heart in the federal court’s affirmation of continuing protection for opinion work product despite a waiver of fact work product protection. And the Texas Supreme Court’s favorable investigation-related ruling may serve as a model for lawyers’ investigation and later publications of the results.