Circuit Court Supports Attorney-Client Privilege and Work Product Protections in Connection with Internal Investigations

By Jason Spitalnick, Taryn J. Gallup, and Kourtney George

On October 3, 2025, the U.S. Court of Appeals for the Sixth Circuit reaffirmed that the attorney-client privilege and work-product protections cover documents and communications concerning corporate internal investigations—even when companies later use those documents or related findings to make business decisions.¹ In doing so, the court vacated a district court order that would have required FirstEnergy Corporation to produce, in civil litigation, privileged and work-product-protected documents related to two internal investigations.
 
FirstEnergy, a public utility company headquartered in Ohio, became embroiled in a high-profile public-corruption scheme involving substantial alleged payments to state officials in exchange for favorable legislative efforts. In response, FirstEnergy and an independent committee of its board retained separate outside counsel to conduct internal investigations. FirstEnergy then faced civil litigation related to the same underlying facts.
 
In one shareholder class action securities suit, plaintiffs requested documents related to the two internal investigations. When FirstEnergy withheld the documents from production, plaintiffs moved to compel. The district court ordered production of the investigation documents, finding that they were not protected by the attorney-client privilege or work-product doctrine because they served ordinary-course business purposes. After the district court denied FirstEnergy’s request for an interlocutory appeal, FirstEnergy filed a mandamus petition in the Sixth Circuit.
 
The October 3 order vacates the district court’s document production order and, citing the seminal case Upjohn Co. v. United States,² reaffirms a long-standing principle that, when a company seeks legal advice to assess potential liability, the attorney-client privilege applies to the company’s internal investigation documents and communications. Specifically, the court held: “What matters under the attorney-client privilege is whether a company seeks legal advice, not what it later does with that advice.”³ The court then noted: “Over and over, FirstEnergy showed that it primarily sought and received legal advice from its attorneys throughout the investigations.”⁴
 
With respect to the work-product doctrine, the court accorded significance to the “onslaught of legal and regulatory action” facing FirstEnergy at the time the investigations were conducted, concluding that FirstEnergy could reasonably anticipate litigation would ensue.⁵
 
Further, the Sixth Circuit rejected plaintiffs’ argument that FirstEnergy waived privilege and work-product protections by making limited disclosures of non-privileged facts to its independent auditor, the government, and civil litigants. The court wrote that “the bulk of this overlapping information was already discoverable, and the rest tended to be bare conclusions from the investigation, not the substance of the attorney’s advice.”⁶
 
The FirstEnergy ruling underscores important principles protecting internal investigation documents from disclosure in civil litigation. That said, the decision is a useful reminder that protections from disclosure are not guaranteed and can be challenged by litigants.
 
Other jurisdictions, including courts in the Ninth and Tenth Circuits, have similarly recognized that attorney-client privilege applies when communications are made in confidence and primarily for legal advice.⁷ Regarding the work product doctrine, these Circuits apply a broad standard for qualified protection of materials prepared in anticipation of litigation or adversarial proceedings, safeguarding documents created because of the prospect of litigation, even if they also serve a business purpose. However, courts in these jurisdictions have cautioned that such protections may be waived if privileged materials from internal investigations are disclosed to third parties.⁸
 
Corporate and outside counsel should, among other things, properly document that investigations are seeking legal advice; maintain a separateness between legal and business-oriented internal investigations; implement and maintain robust privilege protocols; always remain mindful of potential privilege waivers, such as disclosures to third-parties; and limit regulatory and other disclosures to materials that are clearly not privileged.