Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating With the Government: Establishing Privilege and Work Product in an Investigation (Part One of Three)

Guarding attorney-client privileged communications and attorney work product are often important objectives, particularly for fund managers conducting internal investigations while simultaneously cooperating with the government. The privilege and, to a lesser extent, the work product doctrine generally require confidentiality, which can be contrary to the disclosure required when cooperating with the DOJ or the SEC’s Enforcement Division. In a three-part guest series, Eric J. Gorman and Brooke A. Winterhalter, partner and associate, respectively, at Skadden, examine the interplay between the attorney-client privilege and attorney work product protection, on the one hand, and cooperation with the government, on the other. This first article in the series addresses how and when the attorney-client privilege and attorney work product protection are created during internal investigations, and steps that can be taken to establish and maintain those protections. The second article will analyze what investigation materials can be shared with the government without implicating the privilege or attorney work product protection, and what steps can be taken to help preserve these protections if applicable documents are shared, intentionally or otherwise, with the government. The third article will provide an overview of when and how privileged or protected investigation materials that have been shared with the government can be protected from discovery in collateral litigation. For more on internal investigations, see “D.C. Circuit Confirms Applicability of Attorney-Client Privilege to Internal Investigations” (Aug. 7, 2014); and “For Hedge Fund Managers in a Heightened Enforcement Environment, Internal Investigations Can Help Prevent or Mitigate Criminal and Civil Charges” (Nov. 25, 2009).

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