Litigation » Preserving Privilege In Internal Investigations

Preserving Privilege In Internal Investigations

September 24, 2014


A ruling earlier this year from the U.S. Court of Appeals for the D.C. Circuit, vacating a district court decision, said that to determine whether or not a communication is privileged, a “primary purpose” test should be applied. A communication passes that test if its primary, although not necessarily its only purpose, is the provision of legal advice. Cozen O’Connor attorneys Stephen A. Miller and Brian Kint consider the decision, In re: Kellogg Brown & Root, and its implications – one of them being that companies are well-advised to retain outside counsel to work with in-house counsel on internal investigations. “Because outside counsel is only engaged for legal advice,” they write, “this will strengthen the company’s claim that a ‘primary purpose’ of the investigation is to obtain legal advice.”

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