In exchange for self-reporting and disclosing the facts and circumstances surrounding potential legal violations, the DOJ and SEC offer strong incentives for fund managers to share information about those violations derived from internal investigations. This can include information obtained from relevant witnesses and the identities of potential individual wrongdoers. See “Self-Reporting and Remedying Improper Fee Allocations May Not Be Sufficient for Fund Managers to Avoid SEC Action
” (Sep. 15, 2016); and “SEC Enforcement Action Against a Private Equity Fund Manager Partner Calls Into Question the Value of Self-Reporting in the Private Funds Context
” (Oct. 13, 2011). Disclosures to the government, however, can seem to conflict with the confidentiality dictates of the attorney-client privilege and the attorney work product doctrine. Consequently, investigating managers that cooperate with the government often face important strategic questions, including how much information to share and whether to include privileged and attorney work product materials in their disclosures to the government. This second installment in the three-part guest series by Eric J. Gorman and Brooke A. Winterhalter, partner and associate, respectively, at Skadden, analyzes these strategic questions and identifies certain steps that managers can take to minimize the risk, or extent, of a waiver of the privilege or work product protection while cooperating with the government. The first installment
discussed how managers can establish the attorney-client privilege and attorney work product protection during an internal investigation. The third installment
will address strategies for shielding privileged investigation files from discovery in collateral litigation with third parties. For more on establishing and protecting privilege during internal investigations, see “How Hedge Fund Managers Can Protect Privileged Internal Investigations Without Violating SEC Whistleblower Rule 21F-17
” (May 21, 2015); and “D.C. Circuit Confirms Applicability of Attorney-Client Privilege to Internal Investigations
” (Aug. 7, 2014).