Applying the Attorney-Client Privilege to Investigations Involving Attorneys: What Is Fair Game in Discovery?

When the client’s adversary seeks discovery of the communications between the client and the attorney investigator in subsequent litigation, a dispute often arises as to what documents or information must be produced.

A typical law firm currently takes on far more duties than its traditional role of providing solely legal advice. Indeed, in an effort to achieve the "full service" that many of its clients desire, lawyers and their employees often find themselves rendering investigative, as well as legal, assistance in a myriad of different factual settings. Examples include an investigation of potential medical malpractice on behalf of a hospital,1 an investigation into allegations of sexual molestation by an elementary school teacher,2 an investigation of sexual discrimination complaints on behalf of an employer,3 an investigation on behalf of a factory owner of an explosion that killed and injured several on-site contractors,4 an investigation into the back-dating of stock options,5 an investigation of potential arson on behalf of a property insurance carrier,6 an investigation into possible trademark infringement by a competitor,7 an investigation of potential fraud and other improprieties on behalf of a bank,8 an investigation on behalf of a multinational corporation of questionable payments to a foreign governmental official to secure government business,9 an investigation into allegations that laboratory managers impeded a separate internal ethics investigation,10 and an investigation into the insurance aspects surrounding the World Trade Center attack.11 Attorneys then communicate the results of their investigations to their clients.12

1. Samaritan Found. v. Goodfarb, 862 P.2d 870 (Ariz. 1993); Hyams v. Evanston Hosp., 587 N.E.2d 1127 (Ill. App. Ct. 1992).
2. Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612 (7th Cir. 2010).
3. Harding v. Dana Transp. Inc., 914 F. Supp. 1084 (D.N.J. 1996).
4. Nat'l Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993).
5. United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009).
6. Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869 (5th Cir. 1991); Burr v. United Farm Bureau Mut. Ins. Co., 560 N.E.2d 1250 (Ind. Ct. App. 1990); State ex rel. U.S. Fid. & Guar. Co. v. Canady, 460 S.E.2d 677 (W. Va. 1995).
7. Gucci Am. Inc. v. Guess?, Inc., 271 F.R.D. 58 (S.D.N.Y. 2010).
8. Spectrum Sys. Int'l Corp. v. Chem. Bank, 581 N.E.2d 1055 (N.Y. 1991).
9. Upjohn Co. v. United States, 449 U.S. 383 (1981).
10. Gingrich v. Sancia Corp., 165 P.2d 1135 (N.M. Ct. App. 2007).
11. SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 9291 (JSM), 2002 U.S. Dist. LEXIS 11949 (S.D.N.Y. July 3, 2002).
12. See In re Allen, 106 F.3d 582, 602 (4th Cir. 1997) (noting that "[c]ourts have consistently recognized that investigation may be an important part of an attorney's legal services to a client").

Reprinted with permission from The Attorney-Client Privilege in Civil Litigation: Practicing and Defending Confidentiality, Fifth Edition.

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