McGuireWoods counsel 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 their chances.
“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.