Privilege at Risk in Investigations and Audits

Outline

1. Who holds the privilege in internal investigations and audits
   1. Privilege considerations when interviewing employees
   2. Privilege within the corporation during the investigation
   3. Protecting communication among management
   4. Privilege protections for communications with former employees
   5. Audit committees and reporting to the Board
   6. Third parties in investigations
   7. The Garner doctrine: access to investigatory materials by shareholders and other beneficiaries of fiduciary relationships
2. Waiver
   1. Scope of waiver (including Rule 502)
   2. Types of waiver
   3. Disclosure of the investigative report
   4. Waiver to governmental agencies
3. Disclosure to a company's auditors without waiving the company's privilege
   1. Auditor requests
   2. Risk of waiver
   3. The "treaty"
   4. Recommendations
4. Best practices for preserving privilege
   1. Understanding the scope of the privilege in the relevant jurisdiction
   2. Active engagement of counsel from the outset of an investigation
   3. Structuring the investigation to take full advantage of the scope of attorney-client privilege in the relevant jurisdiction
   4. Documentation authorizing and describing the purpose of the investigation
   5. Clarification of in-house counsel's role
   6. Retention of outside counsel
   7. Documentation and labeling of confidential communications and documents
   8. Education/training
5. Controlling privileged material to reduce the possibility of waiver
   1. Segregate facts from documents that contain attorney work product
   2. When facing a demand for privileged material, negotiate protection from future third-party discovery
6. Limited waiver agreements
   1. Do not acquiesce when privilege rights are contested
   2. Joint defense agreements
   3. 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?