Most corporate executives and even many lawyers mistakenly think that any lawyer’s connection with internal corporate investigations all but guarantees privilege protection. This dangerous misunderstanding overlooks the three elements courts examine to determine privilege: the investigation’s initiation, course and use.
A recent case, Howard v. Redpath USA Corp., Case No. 2:24-cv-00423, 2026 U.S. Dist. LEXIS 156192 (D. Utah July 14, 2026), is demonstrative. Mine owner Kennecott investigated an accident in which Kennecott’s employee was struck by a vehicle operated by contractor Redpath’s employee. The court rejected Redpath’s effort to discover Kennecott’s report, noting that: (1) Kennecott’s inside and outside counsel initiated and “were involved throughout the investigation” (id. at *12); (2) Kennecott’s investigation team did not discuss the investigation with or give reports to Redpath; (3) the investigation report only went to “select senior leaders” at Kennecott, accompanied by the lawyers’ “advice and counsel” and “itself indicates the investigative team prepared it at the direction of counsel” (a conclusion reinforced by its contents) (id. at *4, *12); (4) the report was “not a standard practice based on corporate policy or federal law” and “departed from [Kennecott’s] typical practice” (id. at *13); and (5) Kennecott prepared a separate and “different report” required by federal regulations and gave a copy of that report to Redpath. Id. at *14.
Kennecott’s inside and outside lawyers deserve credit for carefully focusing on the investigation’s initiation, course and use. All lawyers finding themselves in a similar situation would be wise to follow their example.