Call Your Lawyer, Stay Confidential: Sixth Circuit Protects Privileged Internal Investigations

On October 3, 2025, the Sixth Circuit in In re FirstEnergy Corp. (No. 24-3654), granted mandamus relief, overturning a lower court order that compelled production of two law firms’ internal investigative materials. The Court of Appeals held that documents generated during two outside counsel-led internal investigations were protected by the attorney-client privilege and work-product doctrine. The decision follows months of attention after the Court’s earlier emergency stay signaled skepticism toward compelled disclosure of privileged investigative materials.

This decision reinforces that internal investigations directed by outside counsel to provide legal advice are protected from disclosure, particularly when litigation or enforcement action is anticipated. It also underscores that sharing information with auditors or using outside counsel’s findings to guide business decisions does not automatically waive those protections.

When companies face potential government inquiries or other crises, how an internal investigation is structured determines whether findings remain protected or become discoverable later. Properly structuring an investigation enables clients to obtain frank legal advice without handing a roadmap to opposing parties. It also helps clients coordinate complex matters across multiple regulatory and litigation fronts while maintaining confidentiality.

Miller Johnson’s Investigations Practice Group structures and leads internal investigations for its clients with these interests in mind.