Sixth Circuit Affirms Attorney-Client Privilege and Work-Product Protections Are Available for Internal Investigations
October 13, 2025
In a strongly worded decision, the Sixth Circuit recently reaffirmed that attorney-client privilege and work-product doctrine-based protections apply to documents and communications concerning corporate internal investigations. In doing so, the court vacated a district court order that would have required FirstEnergy Corporation (a public company) to produce in civil litigation discovery privileged and work-product-protected documents related to two internal investigations.1 As explained further below, the court also considered and rejected the argument that FirstEnergy had waived its privilege and work-product protections by disclosing certain investigation-related facts and documents to its independent auditor, the government, and civil litigants.
Background
In July 2020, the United States Attorney’s Office for the Southern District of Ohio (the “USAO”) announced that Larry Householder, Ohio’s then Speaker of the House, had been arrested in connection with an alleged federal racketeering conspiracy. Although FirstEnergy was not charged, it was implicated in the criminal complaint and, the day after the charges were announced, its stock price fell by 45%. The USAO also issued subpoenas to FirstEnergy. FirstEnergy and its board separately retained outside counsel to conduct internal investigations and provide legal advice regarding the alleged misconduct.
Soon after, FirstEnergy also faced a wave of regulatory investigations and civil lawsuits. In one shareholder class action, plaintiffs requested documents, including those related to FirstEnergy’s internal investigations. After FirstEnergy withheld the investigation documents from production, plaintiffs moved to compel. A special master recommended, and the district court ordered, production of the investigation documents finding that they were not protected by the attorney-client privilege or work-product doctrine. After the district court denied FirstEnergy’s request for an interlocutory appeal, FirstEnergy filed a mandamus petition in the Sixth Circuit.
A Textbook Example of Protected Documents
The Sixth Circuit, relying on the seminal U.S. Supreme Court’s Upjohn decision,2 vacated the district court’s order and reaffirmed a long-standing principle that, when a company seeks legal advice to assess potential liability, the attorney-client privilege applies to a company’s internal investigation documents and communications. FirstEnergy’s retention of counsel in the wake of the Householder charge to investigate potential misconduct and to provide legal advice in connection with government investigations provides a textbook example of attorney-client protected communications.3 Significantly, the court rejected the district court’s reasoning that the attorney-client privilege did not apply because FirstEnergy “later used the fruits of the investigation for business decisions,”4 noting that “ “[w]hat matters under the attorney-client privilege is whether a company seeks legal advice . . . not what it later does with that advice.”5
The court also found that the investigation documents were protected by the work-product doctrine, which shields documents from disclosure that were “prepared in anticipation of litigation.”6 Similar to its conclusions on the question of attorney-client privilege, the Sixth Circuit found that the FirstEnergy documents in dispute “clearly” met the standard for work-product protection because FirstEnergy reasonably anticipated the “onslaught of legal and regulatory action” that “prompted the internal investigations.”7
Limited Disclosures Did Not Waive the Attorney-Client Privilege or Work-Product Protections
The Sixth Circuit addressed—and rejected—common waiver arguments that often arise in complex, multi-front investigations. The court held that FirstEnergy did not waive privilege or work-product protections by making limited disclosures to its independent auditor, the government, and civil litigants of non-privileged facts and information that also happened to be part of the investigation documents because “the bulk of the overlapping information was already discoverable, and the rest tended to be bare conclusions from the investigation, not the substance of the attorney’s advice.”8
With respect to the court’s finding of no waiver for sharing information with the auditor, the court relied on several facts including that (i) the auditor’s internal memoranda reflected that FirstEnergy had withheld responsive documents “based on the assertion of attorney client-privilege or other legal privilege” and (ii) the auditor was not FirstEnergy’s adversary, citing the nature of their relationship and related ethical rules for public accountants, including a duty to keep confidential FirstEnergy’s information.9 The court emphasized that work-product privilege is not automatically waived by the disclosure to a third party; rather, “[o]nly disclosures to an adversary will waive work-product protection.”10
Conclusion and Key Takeaways
The Sixth Circuit’s FirstEnergy decision reaffirms bedrock principles of attorney-client privilege and work-product doctrine protections from disclosure in the context of an internal investigation where counsel was retained to provide legal advice and assess liability risk in the face of reasonably anticipated litigation. But the decision is a good reminder that the protections from disclosure are not absolute and are subject to attack.
In-house and external counsel can also take some reasonable steps in internal investigations to minimize the chance of a court later finding that information is not protected by privilege or the work-product doctrine, including:
- Properly document that the investigation’s purpose is for the company to receive legal advice.
- Maintain robust privilege protocols (e.g., labeling, limited distribution, controlled summaries) to reduce the risk of inadvertent waiver.
- Limit disclosures to factual findings or non-privileged materials.
- Documenting that privileged analyses were not disclosed to auditors and regulators.
1 In re FirstEnergy Corp., Case No. 24-3654, 2025 WL 2814286 (6th Cir. Oct. 3, 2025).
2 Upjohn Co. v. United States, 449 U.S. 383 (1981).
3 See FirstEnergy Corp., 2025 WL 2814286, *2.
4 Id. at *3.
5 Id. (internal citations omitted).
6 Id. (citing Fed. R. Civ. P. 26(b)(3)).
7 Id.
8 Id. at *8 (internal quotations omitted).
9 Id.
10 Id.
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