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

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Conducted on Wednesday, March 25, 2020

Recorded event now available

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Course Materials

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.


Businesses must protect the confidentiality of corporate information when providing documents to government investigators or independent auditors. Inadvertently submitting confidential communications and other records protected by the attorney-client privilege or the work product doctrine can result in waiver.

Recent Federal decisions indicate a trend toward increased limits on attorney-client privilege and work-product protection.

Outside auditors, government agents, and potential business partners demand a wide variety of sensitive, confidential information from businesses.

Listen as our experienced panelists will identify dangerous privilege pitfalls for the unwary and discuss how counsel can help companies maintain strong privilege and work product protection during investigations, in the course of outside audits, and in negotiating deals.



  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


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?


Hayes, Michael
Michael B. Hayes

Montgomery McCracken Walker & Rhoads

Mr. Hayes is a Partner at Montgomery McCracken, where his practice focuses on complex commercial litigation, internal...  |  Read More

McKay, Kenneth
Kenneth E. McKay

Baker Donelson

Mr. McKay has experience in a wide range of litigation areas. He concentrates on commercial litigation and real...  |  Read More

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