In an article titled “Courts Clarify Scope of Privilege for Internal Corporate Investigations,” Thomas Wilkinson and Tamar Wise, members of Cozen O’Connor’s Commercial Litigation Department, discuss a wave of recent cases which have clarified the scope of the attorney-client and work-product privileges in the context of internal corporate investigations. The recent case law demonstrates the extent to which courts are continuing to remain faithful to the guidance articulated in Upjohn Co. v. U.S. nearly twenty five years ago but are reluctant to broadly apply the attorney-client and work-product privilege in the internal corporate investigation context. Where a corporation is unable to demonstrate that its counsel specifically directed an investigation for the express purpose of enabling it to assist with a pending or threatened litigation, documentation surrounding the investigation is likely to be deemed discoverable.
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