Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating With the Government: Implications for Collateral Litigation (Part Three of Three)

When a private fund manager conducts an internal investigation and cooperates with the government, there can sometimes be collateral litigation concerning some issues under review in the investigation. If litigation does arise, and it appears to overlap in some way with issues that are or were under review in an internal investigation, the plaintiffs, prosecutors or defendants in the litigation may request discovery of the manager’s internal investigation files. To support their discovery efforts, litigants may try to argue, among other things, that the privilege and work product protection were waived, perhaps as a result of the manager’s cooperation with the government. The first and second installments of this three-part guest article series by Skadden partner Eric J. Gorman and associate Brook A. Winterhalter addressed ways for managers to establish the privilege and work product protection during internal investigations and government cooperation. This third installment analyzes strategies and legal arguments that fund managers may wish to consider as they seek to shield investigation materials shared with the government from third-party discovery requests in collateral litigation. For more on protecting the attorney-client privilege, see “Federal Court Decision Narrows the Scope of Attorney-Client Privilege Available to Hedge Fund Managers in Internal Investigations” (Jan. 23, 2014); and “Six Recommendations for Hedge Fund Managers Seeking to Protect Themselves From Waiver of Attorney-Client Privilege When Faced With SEC Document Requests” (Jan. 17, 2013).

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