Outside and in-house lawyers may of course normally claim privilege protection for their investigation-related communications, as long as they were primarily motivated by the need for legal advice. Depending on the anticipation of litigation element, they may also claim work product protection for those communications. But what if non-lawyer corporate employees conduct an investigation?
In Mölnlycke Health Care US, LLC v. Greenwood Marketing LLC, No. 22 Civ. 3719 (CS)(JCM), 2024 U.S. Dist. LEXIS 197364 (S.D.N.Y. Oct. 29, 2024), the defendant sought the plaintiff’s internal investigation-related communications involving non-lawyers who had assisted in the investigation. The court protected many of the communications as privileged and work product, citing an earlier S.D.N.Y. case recognizing such protections for communications with non-lawyer employees who have been “deputized” to gather information an in-house lawyer needed. Id. at *13-15. This helpful doctrine can dramatically expand privilege protection for corporate investigations.
In-house and outside lawyers who “deputize” non-lawyer colleagues to gather facts for them should carefully document the arrangement and train the non-lawyers to provide the required Upjohn warning when they conduct their deputized interviews.