A recent decision by Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia is a stark reminder that neither the attorney-client privilege nor the work product doctrine automatically protects material created during an internal investigation from disclosure in subsequent litigation.

A law firm prepared many witness interview memoranda during an internal investigation for the Washington Metropolitan Area Transit Authority ("WMATA"). The lawyer who prepared the documents labeled each one "attorney work product." A lawyer who had been involved in the investigation submitted a declaration stating that she was aware of the possibility of litigation, and that the memoranda were intended to be internal work product for the law firm's use.

Despite these facts, Judge Collyer decided in Banneker Ventures, LLC v. Graham, 2017 WL 163313, D.D.C., No. 13-391 (RMC), 5/16/17) that neither the privilege nor the doctrine shielded the memoranda from discovery. The WMATA had waived the attorney-client privilege regarding most of the material by including portions of the interview memoranda in a report that it had made public. However, the Court did issue a protective order preventing the disclosure of topics not covered by the public report, such as recommendations, or opinions on the credibility of the interviewees, and any revelation of a lawyer’s mental impressions.

The work product doctrine did not protect the documents because the WMATA did not carry its burden of showing that the memoranda were prepared in anticipation of litigation and not for business purposes. Judge Collyer noted that there had been more than a two-year gap between when the WMATA became aware of the possibility of litigation and the commencement of the internal investigation. In addition, The Board noted that the investigation was aimed at formulating and recommending changes to the Board's policies, standards and procedures, which were business and not litigation goals. The Court cited previous cases as teaching that not all documents generated from an internal investigation are protected by the work product doctrine simply because an organization's internal investigation coexists with a present or anticipated lawsuit, and that documents that would have been created in the ordinary course of business irrespective of litigation are not protected by the work product doctrine. Duran v. Andrew, No. 09-730, 2010 WL 1418344, at *4-5 (D.D.C. April 5, 2010). "Where a document would have been created ‘in substantially similar form’ regardless of the litigation, work product protection is not available.” FTC v. Boehringer Ingelheim Pharmaceuticals, 778 F.3d 142, 149 (D.C. Cir. 2015). The Court decided that even if there had not been anticipated litigation, the WMATA would have conducted the same investigation to evaluate its business practices and to revise its Standards of Conduct for the Board of Directors.

The lesson is that lawyers cannot be confident that affixing labels such "attorney work product" to witness interview memorandum created during internal investigations, or by invoking rubrics such as "made in anticipation of litigation" even where there may actually be some anticipation of litigation, will result in protecting the material from disclosure in subsequent litigation. Rather, whether the attorney-client privilege or the work product doctrine will protect the material will turn on a detailed analysis of the facts of each case.