Tom Spahn explained the steps a company should take to safeguard its attorney-client
privilege and work product protections when conducting an internal
investigation in an article in the summer issue of Practical Law,
a division of Thomson Reuters.
Based in Tysons, Virginia, Spahn is one of the nation’s leading authorities
on legal ethics and attorney-client privilege. In the article, “Planning an
Internal Investigation That Preserves Privilege and Work Product
Protections,” he outlined issues organizations must consider before
embarking on such investigations. If organizations don’t plan carefully
from the outset, they could unintentionally make it difficult to
successfully assert attorney-client privilege or work product protections
later, he wrote.
Spahn advised in-house and outside counsel to recognize the difficulty of
successfully asserting these protections and noted a string of recent court
decisions denying those protections for organizations that investigated
data breaches. He cited several steps organizations can take to bolster
“Counsel for an organization who fail to effectively plan for an internal
investigation and implement certain best practices from its outset risk a
court ruling that investigation-related materials fall outside the scope of
the attorney-client privilege and work product protections, or that the
organization failed to properly maintain and therefore waived these
protections,” Spahn wrote.