Maintaining Work Product Protection During Investigations After the Herrera Decision

A recent decision in the Southern District of Florida calls into question whether disclosing information about an internal investigation to the government results in a waiver of the work product protection. In SEC v. Herrera, the court ordered a law firm to disclose the case notes and memoranda it created while conducting an internal investigation on behalf of General Cable Corp. In a guest article, Baker Botts partners Bridget Moore and Seth Taube, and associate Joseph Perry, discuss the implications of the Herrera decision and provide practical guidance for how companies and their advisors can maintain privilege in its wake. See the Anti-Corruption Report’s three-part series on protecting attorney-client privilege and work product while cooperating with the government: “Establishing Privilege and Work Product in an Investigation” (Feb. 1, 2017); “Cooperation Benefits and Risks” (Feb. 15, 2017); and “Implications for Collateral Litigation” (Mar. 1, 2017).

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