Guarding Confidentiality in Investigations: Insights from General Motors and Kellogg Brown & Root on Maintaining Attorney-Client Privacy
In the complex world of corporate law, the concept of privilege is a crucial one. This article will explore various court cases that have shaped the understanding of privilege and its application in different situations.
Firstly, the case of In re Grand Jury Subpena Duce Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1037 (2d Cir. 1984) is significant as it underscores the value of privilege in allowing companies to respond effectively to critical situations without undue scrutiny.
The protections of privilege are not absolute, but they serve a vital purpose. For instance, in cyber readiness exercises, non-lawyer technical experts may work with a company to assess its preparedness for a breach or incident. If there is a significant legal purpose, such as understanding potential liability, the work may be considered privileged.
The case of ABB Kent-Taylor, Inc. v. Stallings and Co., Inc., 172 F.R.D. 53, 55 (W.D.N.Y. 1969) highlights a common issue: in-house counsel often serve mixed business and legal roles, which can complicate privilege discussions.
Upjohn Co. v. United States, 449 U.S. 383, 394 (1981) is another landmark case that emphasises the importance of maintaining confidentiality throughout the privilege process, especially during internal investigations.
In Germany, to ensure that interview notes, summaries, and formal research results of an independent lawyer during an internal investigation regarding a potential crisis are protected under privilege, it is crucial to apply the legal privilege for attorney communications. This typically involves ensuring that the documentation is closely related to legal advice or defense.
The case 14-MD-2543 (JMF) (S.D.N.Y. Jan. 15, 2015) is relevant as it demonstrates the need for a process controlled by in-house legal counsel and involving active involvement by counsel during the privilege discussion process.
The case decisions in GM and KBR may set a path for protecting legal work and relations with third-party consultants and vendors before an investigation. This is particularly important in the modern business landscape, where outsourcing and collaborations are common.
Lastly, the case United States ex. Burko v. Halliburton Co., No. 1:05-CV_1276, 2014 WL 1016784 *2 (D.D.C. Mar. 6, 2014) and 240 F.R.D. 96 at 103-5 (S.D.N.Y. 2007) are relevant cases that provide further insights into the intricacies of privilege discussions in corporate law.
The case 756 F. 3d 754 (D.C. Cir. 2014) also offers valuable lessons on the application of privilege in corporate investigations.
In conclusion, understanding and applying the principles of privilege in corporate law is a complex task, but these cases provide a solid foundation for navigating this challenging landscape.
