Privileged Material in Audits and Investigations: Protecting Attorney-Client Communication and Work Product

Disclosures to Third Parties, Cross-Border Challenges, Implications of Cohen Raid and Mueller Investigation

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Wednesday, November 7, 2018

Recorded event now available

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Course Materials

This CLE course will guide counsel for protecting the attorney-client privilege when responding to third party investigations and audits, in connection with internal investigations and audits, and in litigation. The panel will discuss key challenges in protecting privileged communication and materials and avoiding inadvertent waivers or disclosures, including the potential impact of recent caselaw concerning border searches of electronic devices. The panel will also offer insight into who and what is covered by the privilege and methods to ensure the protection of confidential material.

Description

Protecting privileged and other confidential information in the mist of investigations, audits, and civil litigations is a significant challenge for attorneys. Counsel must avoid inadvertently releasing records protected by the attorney-client privilege that can result in waiver of the privilege and address the challenges of safeguarding confidential material.

Third-party auditors and government agencies have taken aggressive approaches in the search, seizure, and collection of confidential information from businesses and individuals. Court rulings indicate a trend towards increased limits on attorney-client and work product protection. This is true particularly with the selective waiver doctrine and communications involving a company and its consultants, board members, and others.

Outside auditors, government agents, and potential partners demand a wide variety of sensitive information from businesses and individuals. Our panelists will discuss how counsel can guide a company in protecting these privileges during an outside audit or investigation when conducting an internal investigation, and in negotiating deals.

Furthermore, the Eleventh Circuit’s recent decision in United States v. Touset, allowing the search of electronic devices without reasonable suspicion, makes the protection of privileged materials during border crossings a key concern for lawyers traveling within the Eleventh Circuit. Also, lawyers going in and out of the country must understand recent guidance from the U.S. Customs and Border Protection on procedures and limitations of border agents.

Listen as our panel of legal specialists examines the issues surrounding the attorney-client privilege in investigations and audits, including who has the privilege, how it can be inadvertently waived, and how to shield information. The panel will also discuss their insights and best practices to preserve the privilege for attorneys crossing borders.

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Outline

  1. Who has the privilege in internal investigations/audits
  2. Waiver
  3. Disclosure to a company’s auditors without waiving the company’s privileges
  4. Best practices for preserving the privilege
  5. Cross-border challenges
  6. Controlling privileged material to reduce possibility of waiver
  7. Limited waiver agreements

Benefits

The panel will review these and other high priority 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 third-party investigators?
  • What are the critical considerations for counsel when traveling across borders?
  • What are the best business and legal practices for counsel and corporations to preserve the privilege?

Faculty

Altman, Stuart
Stuart M. Altman
Senior Vice-President and Global Chief Compliance Officer
Las Vegas Sands

Mr. Altman has 25 years of experience in conducting investigations, defending corporations and leading compliance...  |  Read More

Hayes, Michael
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

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