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LJN NewslettersNewsSectionsThe Corporate Counselor

Corporate Internal Investigations

BY William E. White
October 26, 2009

According to the American College of Trial Lawyers, more than 2500 companies conducted internal investigations with the assistance of outside counsel between 2001 and 2008. The recent options backdating scandal alone accounted for 143 internal investigations at public companies. In the wake of the current economic crisis, there will likely be an even greater surge in the number of these investigations.

While companies conduct internal investigations for many reasons, the results of these investigations are often shared with the government. Under guidance from both the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), such cooperation can lead to reduced charges or fines. But the disclosure required by that cooperation with the government leaves open the real possibility that the attorney-client privilege and the work product doctrine may be waived.

As we discuss below, recent court decisions have been finding that these investigations are either not covered by the attorney-client privilege and the work product doctrine or that those privileges have been waived. The consequence of these findings is that third parties ' plaintiffs' attorneys in class action litigation, former employees, and others ' can potentially gain access to all of the material collected, analyzed, or prepared in the investigation.

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