Courts assessing privilege and work product claims for corporate investigations usually focus on (1) the investigation's initiation (analyzing what motivated the investigation), and (2) the investigation's course (usually looking for lawyers' involvement). Less frequently, courts also focus on (3) the corporation's use of the investigation results. That post-investigation factor can shed light on the investigation's initial motivation.
In Carr v. Lake Cumberland Regional Hospital, Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017), the court overruled defendant hospital's privilege and work product claims for documents the hospital created while investigating an allegedly botched surgery. Analyzing one withheld email, the court rejected the hospital Risk Manager's affidavit claiming work product protection – noting that her statement "indicating that she would let the 'administrative team' know about the conversation . . . as opposed to in-house counsel or outside counsel – suggests that at the time of the creation of the emails, neither party crafted their emails 'in anticipation of litigation.'" Id. at *13.
Corporations and their lawyers must remember that courts examining privilege and work product protection for investigation-related documents focus on the investigation's initiation, course, and even how the client used investigation-related documents.