Wultz v. Bank of China Ltd., No. 11 Civ. 1266, 2015 WL 362667 (S.D.N.Y. Jan. 21, 2015), provides an example of a privilege ruling that might have come out differently if a party had better documented its intentions and the involvement of its counsel at the time it conducted an internal investigation.  Plaintiffs sued Bank of China Ltd. (“BOC”) for claims arising out of a 2006 suicide bombing in Israel, alleging that a BOC customer was responsible for the bombing and that BOC assisted the customer by executing significant wire transfers on his behalf.  Before the suit was filed, the plaintiffs’ lawyer informed BOC that he intended to file a lawsuit.  BOC then initiated an internal investigation.  The investigation was handled by non-legal personnel.  Outside counsel was contacted and was in continuous contact with BOC, but there was no evidence outside counsel participated in or directed the internal investigation.  The record did not include any evidence that the purpose of retaining outside counsel was to obtain legal advice, although there was evidence that BOC’s expectation was that outside counsel would use and analyze the findings in order to assess the merits of the allegations.  BOC’s legal department searched a database as part of the investigation but there was no evidence it otherwise participated in the investigation.  After outside counsel was provided information resulting from the internal investigation, he prepared a 9-page letter to BOC reflecting his legal advice.  The court found the attorney-client privilege did not apply to the materials generated during the internal investigation, given the lack of evidence that the investigation was directed by counsel.  The court pointed out that otherwise non-privileged materials do not become privileged simply because they are later conveyed to counsel.  The court further found the work product protection did not apply.  Although the court noted that the protection can apply to materials prepared by non-legal personnel, it found that BOC had failed to establish that the materials would not have been prepared in essentially similar form irrespective of the anticipated litigation.