Signals from the Sixth Circuit- Protecting Privilege for Internal Investigations

Yesterday, the United States Court of Appeals for the Sixth Circuit issued an order in In re FirstEnergy Corp. (No. 24-3654), suggesting that the Court is leaning toward strong protections against disclosure for documents and other materials generated during an organization’s internal investigation. The Court granted an emergency motion to stay a district court discovery ruling that would have compelled production of the company’s internal investigation files. This decision offers a strong signal that the Sixth Circuit is considering a more favorable rule for preserving the attorney-client privilege and work-product protection in the context of internal investigations.

Background

This discovery dispute arose after FirstEnergy and its Board of Directors retain two law firms to conduct internal investigations following a high-profile public corruption scandal. During discovery in subsequent civil litigation, plaintiffs sought access to materials prepared by the outside counsel during their respective investigations. The district court ordered production, holding that neither the attorney-client privilege nor work-product doctrine shielded the materials because FirstEnergy also used the advice from counsel and the documents produced during their investigation for business purposes.

The Sixth Circuit disagreed and stayed the district court’s order. In so doing, the Sixth Circuit first underscored that what matters for attorney-client privilege is not what a company does with its legal advice, but simply whether a company seeks legal advice. The order also emphasized that communications generated during an internal investigation to obtain legal advice are privileged, even if the resulting advice informs business decisions.

Why this Matters

The order to stay not only pauses production but it also commands the plaintiffs to respond to FirstEnergy’s mandamus petition.  We will be watching this case closely. The Sixth Circuit’s final decision could significantly affect internal investigations and privilege law across Michigan, Ohio, Kentucky, and Tennessee.

If you have ongoing or anticipated internal investigations, now is the time to engage counsel and review your protocols to ensure maximum privilege protection under evolving Sixth Circuit standards.

Learn more about Miller Johnson’s Investigations Practice Group.