Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating With the Government: Implications for Collateral Litigation (Part Three of Three)

Collateral litigation can arise when a company is conducting an internal investigation and cooperating with the government. Litigants seeking internal investigation documents in discovery may argue, among other things, that the privilege and work product protection were waived, perhaps as a result of the company’s cooperation with the government. Parts one and two of this three-part guest article series by Eric J. Gorman and Brooke A. Winterhalter, Skadden partner and associate, respectively, addressed ways for investigating companies to establish and preserve the attorney-client privilege and attorney work product protection during internal investigations and government cooperation. This third and final installment in the series analyzes strategies and legal arguments that companies may wish to consider as they seek to shield investigation materials shared with the government from third-party discovery requests in collateral litigation. See also “Attorney-Consultant Privilege? Key Considerations for Invoking the Kovel Doctrine (Part One of Two)” (Nov. 16, 2016); Part Two (Nov. 30, 2016); “Target Privilege Decision Delivers Guidance for Post-Data Breach Internal Investigations” (Nov. 11, 2015); and “Preserving Privilege Before and After a Cybersecurity Incident (Part One of Two)” (Jun. 17, 2015); Part Two (Jul. 1, 2015).

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