• Internal Investigation Report Ruled Not Privileged Despite In-House Counsel's Involvement
  • March 17, 2015
  • Law Firm: Sutherland Asbill Brennan LLP - Washington Office
  • In litigation stemming from a worker’s injuries suffered at a chemical manufacturing facility in Louisiana, one defendant sought the “Root Cause Investigation Report” prepared by the defendant chemical company. Last week, the U.S. District Court for the Eastern District of Louisiana ordered that the report be produced over the chemical company’s objection that the report was protected by the attorney-client privilege. In support of its arguments, the chemical company submitted an affidavit from an in-house counsel that participated in the investigation. The lawyer admitted that the company routinely conducts root cause investigations as part of its “standard business practice” for “run-of-the-mill matters that occur during the day-to-day operation of facilities,” and that normally they are not managed by counsel because litigation is not anticipated.  The lawyer argued, however, that “when severe injuries or events occur, onsite personnel contact [the in-house legal team],” which then coordinates and manages the investigation and follows certain confidentiality protocols. In this particular investigation, the investigation team created an 18-page PowerPoint presentation containing the investigation’s conclusions.

    The court concluded that the report was not protected by privilege. In explaining its rationale, it emphasized that this investigation was the only investigation conducted by the company. Of the 10-member investigation team, only one lawyer was included, and the report contained no references to law, legal advice, or litigation other than a disclaimer that the report was an attorney-client communication prepared for the purpose of obtaining legal advice and that its dissemination was not allowed without the express permission of the in-house legal department. To quote the court, the report contained “only conclusory and self-serving allegations about attorney-client privilege.”

    Rejecting the chemical company’s argument that this investigation managed by counsel could be distinguished from the company’s usual investigations, the court explained, “the evidence shows that Root Cause Investigations of serious matters in general and of this particular case, leading to a single - and the only - analytical report to determine the root causes of an event and implement appropriate remedial measures, are just as much [the company’s] standard business practice as investigations of more mundane incidents.” The court continued, “[the in-house lawyer’s] professed anticipation of litigation, her participation on the team and [the company’s] policy of keeping the investigation confidential cannot convert a factual report prepared in the ordinary course of business into attorney-client privileged material. [The company] cannot convert what is standard business practice performed for a variety of non-legal purposes into privileged material through the simple expedient measure of adding a lawyer into the mix."