LCJ Amicus Brief Urges the Sixth Circuit to Reverse Restrictive Attorney-Client Ruling

LCJ’s amicus brief in In re FirstEnergy Corporation urges the Sixth Circuit to reverse an Ohio federal judge’s ruling restricting the attorney-client privilege in an internal investigation.

The district court applied the “primary purpose” test for attorney-client privilege, denying attorney-client privilege and work product protection to communications and documents related to two internal investigations led by outside counsel. The district court’s test is exceedingly narrow, requiring a party prove the primary purpose of an internal investigation was legal, requiring disclosure of attorney-client communications that had a dual purpose.

LCJ’s brief argues that the primary purpose test for attorney-client privilege should be rejected in this context because it is not practical in practice and undermines the goals of the Federal Rules of Civil Procedure and the attorney-client privilege. Instead, the Sixth Circuit should apply the test adopted by the D.C. Circuit, under which communications and documents created in the context of an internal investigation conducted by counsel may be privileged where, as here, the investigation was motivated in significant part by a legal purpose.

LCJ’s brief, written by Redgrave, LLP, is available here.

A related Law360 article “39 Law Firms Call On 6th Circ. To Reverse FirstEnergy Ruling,” is available here.