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)

The DOJ and SEC offer powerful cooperation incentives to companies that internally investigate and remediate alleged violations of the FCPA and share the facts they learn with the government. While the government expressly declines to require that companies disclose privileged or work product investigation materials as a condition of gaining cooperation credit, protecting the privilege and work product, a crucial objective for companies during investigations, is challenging. The privilege, and to a lesser extent the work-product doctrine, generally require confidentiality. Cooperation with the government, by contrast, often necessitates disclosure. In a three-part guest article series, Eric J. Gorman, a partner at Skadden, and his associate, Brooke A. Winterhalter, seek to unwind that conundrum by closely examining 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 part 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. See also “Attorney-Consultant Privilege? Key Considerations for Using the Kovel Doctrine (Part One of Two)” (Dec. 21, 2016); Part Two (Jan. 18, 2017).

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