Privilege at Risk in Investigations and Audits
Preserving Confidential Information, Safeguarding Work Product, Avoiding Inadvertent Disclosure
Recording of a 90-minute CLE webinar with Q&A
This CLE course is intended to help in-house and outside counsel protect the attorney-client privilege and work-product protection when responding to a government investigation, inquiry or audit. The panelists will offer their insights into who is covered by the privilege and how it can be inadvertently waived.
Outline
- Who holds the privilege in internal investigations and audits
- Privilege considerations when interviewing employees
- Privilege within the corporation during the investigation
- Protecting communication among management
- Privilege protections for communications with former employees
- Audit committees and reporting to the Board
- Third parties in investigations
- The Garner doctrine: access to investigatory materials by shareholders and other beneficiaries of fiduciary relationships
- Waiver
- Scope of waiver (including Rule 502)
- Types of waiver
- Disclosure of the investigative report
- Waiver to governmental agencies
- Disclosure to a company's auditors without waiving the company's privilege
- Auditor requests
- Risk of waiver
- The "treaty"
- Recommendations
- Best practices for preserving privilege
- Understanding the scope of the privilege in the relevant jurisdiction
- Active engagement of counsel from the outset of an investigation
- Structuring the investigation to take full advantage of the scope of attorney-client privilege in the relevant jurisdiction
- Documentation authorizing and describing the purpose of the investigation
- Clarification of in-house counsel's role
- Retention of outside counsel
- Documentation and labeling of confidential communications and documents
- Education/training
- Controlling privileged material to reduce the possibility of waiver
- Segregate facts from documents that contain attorney work product
- When facing a demand for privileged material, negotiate protection from future third-party discovery
- Limited waiver agreements
- Do not acquiesce when privilege rights are contested
- Joint defense agreements
- Control drafting of and access to investigation reports
Benefits
The panel will review these and other key issues:
- What systems should corporations and their counsel implement to identify and protect privileged information?
- How can a company maintain the confidentiality of sensitive information when conducting an internal investigation--or during an audit or investigation by governmental agencies?
- What are the key business and legal best practices for counsel and corporations to preserve the privilege?
Faculty

Michael B. Hayes
Partner
Montgomery McCracken Walker & Rhoads
Mr. Hayes is a Partner at Montgomery McCracken, where his practice focuses on complex commercial litigation, internal... | Read More
Mr. Hayes is a Partner at Montgomery McCracken, where his practice focuses on complex commercial litigation, internal investigations and white collar defense. Mr. Hayes is a frequent columnist and CLE presenter on attorney-client privilege, professional responsibility and cutting-edge electronic discovery issues.
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Kenneth E. McKay
Shareholder
Baker Donelson
Mr. McKay has experience in a wide range of litigation areas. He concentrates on commercial litigation and real... | Read More
Mr. McKay has experience in a wide range of litigation areas. He concentrates on commercial litigation and real estate litigation, including eminent domain/condemnation matters.
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