Companies' internal investigations can deserve (1) privilege protection, if primarily motivated by the need for legal advice; and (2) work product protection, if primarily motivated by anticipated litigation. In both contexts, companies must do something different or special — not in the ordinary course of their business. Careful companies sometimes fail both standards, because they ordinarily investigate suspicious events, serious accidents, etc.
In Boone v. TFI Family Services, Inc., Case No. 14-2548-JTM, 2015 U.S. Dist. LEXIS 126673 (D. Kan. Sept. 22, 2015), the Kansas Department for Children and Families investigated a minor’s death. The court found unpersuasive an agency lawyer's affidavit that the investigation was "'done in anticipation of litigation and under my direction.'" Id. at *5 (internal citation omitted). Relying on the majority view applicable to companies and other institutions, the court rejected work product protection for the investigation — noting that the agency's "policy and procedure manual indicates that an attorney would oversee an investigation involving any situation similar to [the child's] death, regardless of whether litigation was imminent." Id. at *5-6. Two days later, in Gillespie v. Charter Communications, the court similarly rejected defendant's privilege and work product claim for a racial discrimination "Incident Investigation Report." Case No. 4:14CV00207 AGF, 2015 U.S. Dist. LEXIS 128185, at *3 (E.D. Mo. Sept. 24, 2015). In denying the work product claim, the court concluded that Charter "generated [the incident report] in the ordinary course of [its] business" — describing Charter's "ongoing compliance program" as involving a "reporting system, and the process of investigating claims made within this system." Id. at *13.
How can companies successfully claim privilege and work product protection if they establish laudable processes to conduct internal investigations as part of their ordinary course of business? Several days after these decisions, another court provided some guidance. Next week's Privilege Point will discuss that case.
