A recent Sixth Circuit decision[1] provided clarity on the scope of the attorney-client privilege and work product doctrines, particularly as those rules relate to confidentiality and privacy of corporate records reviewed and analyzed as part of internal investigations. The decision is considered a victory for both the legal and the business worlds because it secured the longstanding and fundamental function of legal privileges that encourage complete and transparent sharing between attorneys and their corporate clients.
Background
In 2020, former Ohio House Speaker Larry Householder and several other individuals were indicted as part of a wide-ranging investigation into an alleged bribery scheme related to legislation that was trying to save two failing Ohio nuclear power plants. The investigation, resulting enforcement efforts, and corresponding civil litigation fallout implicated several individuals as well as multiple corporate and governmental Ohio entities, including FirstEnergy Corporation (“FirstEnergy”). In response, FirstEnergy retained two different law firms to spearhead internal investigations for the company and its board of directors, respectively. As part of a related shareholder case, plaintiffs’ lawyers sought documents and information from FirstEnergy related to its internal investigations. FirstEnergy objected, citing the attorney-client privilege and work product doctrine. Protracted litigation ensued over the disputed applicability and scope of the privilege and doctrine in the context of internal investigations. The District Court ordered the production of documents containing the “fruits of those investigations,” including records of the firms’ legal updates to their respective clients and communications containing legal advice. FirstEnergy appealed the decision to the Sixth Circuit Court of Appeals.
The essential question at issue was whether a company’s engagement and consultation of attorneys for the purposes of handling corporate investigations, including internal investigations as well as defense of federal criminal investigations and related public and private litigation, and the documents created as a result of these investigations, are protected by the attorney-client privilege and work product doctrine, or whether the records should be considered business records and thereby not shielded by privilege.
As background, the attorney-client privilege protects confidential communications between a client and their attorney for the purposes of giving or receiving legal advice; the work-product doctrine protects documents and tangible items prepared by a lawyer or their representatives in anticipation of litigation. The attorney-client privilege is an absolute privilege protecting communications, while the work-product doctrine is a qualified, but more robust, protection for documents, which can be overcome by showing a substantial need for the materials.
The District Court Decision
The privilege issue was originally presented to a special master for discovery in the case, who found the internal investigation documents should be produced. That decision was appealed to the District Court. The District Court looked to the purpose of the internal investigations—which the Court deemed to be business counseling related to the various investigations, and not purely legal advice.
Regarding the attorney-client privilege question, the District Court noted that the “attorney-client privilege ‘applies only where necessary to achieve its purpose and protects only those communications necessary to obtain legal advice.’”[2] The Court held that “FirstEnergy’s general references to lawsuits it faced and its cooperation with the government are not persuasive enough to show that communications within the internal investigation are privileged.” Because FirstEnergy acknowledged that it had used the internal investigations for many purposes, including business and employment decisions, the District Court found that FirstEnergy did not meet its burden to invoke the privilege.
Regarding the work product doctrine question, the District Court ultimately found that FirstEnergy had not met its burden to show that the materials were prepared “in anticipation of litigation,” merely based on the existence of pending federal government investigations into matters, rather than for the purpose of addressing “employment decisions and business concerns.” As a result, the District Court found that the work product doctrine did not apply.
The Sixth Circuit Weighs In
On appeal, FirstEnergy argued that the District Court incorrectly applied both the attorney-client privilege and the work-product doctrine. The U.S. Court of Appeals for the Sixth Circuit agreed with FirstEnergy on both points.
In making its decision, the Sixth Circuit held that because FirstEnergy sought and received its counsel’s advice as a result of the investigative activities performed by that counsel, the attorney-client privilege should apply. The Sixth Circuit elaborated, “[t]he district court thought that none of this mattered because FirstEnergy also used this advice for business purposes. That approach gets it backwards. What matters for attorney-client privilege is not what a company does with its legal advice, but simply whether a company seeks legal advice.”
Regarding the work product doctrine, the Court of Appeals found that FirstEnergy successfully showed that the products of its internal investigations were protected by the attorney-work-product doctrine. The Court of Appeals emphasized that, to determine whether work-product protection applies, the analysis must decipher whether documents were created “because of a party’s ‘reasonable’ anticipation of litigation, as opposed to its ordinary business purposes.” Further, the Sixth Circuit’s opinion added:
As to work product, the district court, for reasons that remain unclear, concluded that the internal investigations were not performed in anticipation of litigation. It found that FirstEnergy would have undergone the investigations in substantially the same manner for business purposes. That conclusion ignores the criminal and civil subpoenas, eight lawsuits, and federal and state investigations which go to the heart of the issue. FirstEnergy, simply put, faced an onslaught of civil and criminal investigations while pursuing internal investigations. Work-product protection likely applies as well.
In other words, as the Sixth Circuit panel held, “FirstEnergy’s internal investigations produced materials likely ‘because of’ actual—not merely anticipated—legal and regulatory threats.”
Throughout its decision, the Court emphasized the “strong public interest” in preserving both the attorney-client privilege and work product doctrine.
Husch Blackwell Team Takeaways
Litigation matters and law enforcement investigations often have peripheral repercussions. Internal investigations often are necessary for companies to evaluate risk, prevent retaliation against whistleblowers, identify wrongdoers, develop mitigation strategies, and prepare strategies and defenses. This cannot happen effectively if the client is worried that its confidential communications with counsel may someday be discoverable by adversaries. The FirstEnergy decision emphasizes the important role of retaining experienced legal counsel but also the important protections that have long been provided by the attorney-client privilege and attorney work product doctrine. Clients need to have the ability to communicate freely with their chosen counsel regarding sensitive and confidential matters. The Sixth Circuit, importantly, has reinforced these important protections and privileges.
If you or your company are facing a government investigation or audit or evaluating potential legal risks, Husch Blackwell’s White Collar, Internal Investigations, & Compliance team is capable and able to assist. Contact any of the authors of this Blog, or your Husch Blackwell attorney, for more information on how we can help you with your matter.
[1] In re: FirstEnergy Corporation, 6th Cir. App., 24-03654 (August 7, 2025).
[2] In re FirstEnergy Corp. Sec. Litig., No. 2:20-CV-03785-ALM-KAJ, 2024 WL 1984802 (S.D. Ohio May 6, 2024).