The large Detroit-based law firm of Clark Hill recently lost its effort to protect as attorney-client privileged and work product doctrine-protected its own investigation into its own data breach. Wengui v. Clark Hill, PLC, Civ. A. No. 19-3195 (JEB), 2021 U.S. Dist. LEXIS 5395 (D.D.C. Jan. 12, 2021). A large law firm's inability to assure such protections for its own data breach investigation highlights the difficulty of any client doing so. What steps can corporate clients take to maximize those protections?
First, to deserve attorney-client privilege protection, corporations (or law firms) must establish that they were primarily motivated by the need to gather facts the lawyer required to provide legal advice. While serving on the D.C. Circuit, Judge Kavanaugh articulated a more corporate-friendly standard that would have protected as privileged an investigation if the need for legal advice was "one of the significant purposes" (even if it was not the "primary" purpose). In re Kellogg Brown & Root, Inc., 756 F.3d 754, 759-60 (D.C. Cir. 2014). But that standard has not widely taken root. Second, to deserve work product protection, corporations must prove that they were primarily motivated by litigation or anticipated litigation. Corporate investigations have little if any hope of work product protection if they are required by some external or every internal mandate. In those situations, no one can testify that the corporation would not have undertaken the investigation in the same fashion but for the primary purpose of litigation preparation. Ironically, this standard can create great difficulty for corporations that diligently require investigations into every allegation of financial misconduct, every workplace accident, every slip and fall in the produce aisle, etc.
Not surprisingly, courts do not automatically accept such primary purpose assertions in post-investigation affidavits or even statements supporting those purposes prepared during the investigation. Instead, courts frequently review in camera the withheld investigation-related documents. So corporations must not only talk the talk, they must walk the walk. Next week's Privilege Point will address the first focus of most courts' privilege and work product assessments: the investigation's initiation.