News & Events

Conducting Internal Investigations In The Shadow Of “Active” Law Enforcement

Anthony L. Cochran
alc@cclblaw.com

Chilivis Cochran Larkins & Bever, LLP
3127 Maple Dr., N.E.
Atlanta, GA 30305
(404) 233-4171

When conducting an internal investigation in the shadow of an active Law Enforcement investigation, there are a number of ways in which Company counsel can come into conflict with Law Enforcement. These include issues related to:

  1. Deciding whether the Company will cooperate meaningfully with Law Enforcement;
  2. The acquisition and preservation of documents;
  3. Controlling access to and conducting interviews of Directors, Officers and Employees;
  4. Providing advice to Directors, Officers and Employees about contacts by Law Enforcement;
  5. The indemnification and advancement of fees for “targets” and “subjects” of the investigation;
  6. Entering into Joint Defense or Common Interest Agreements;
  7. Waiver of the Attorney-Client Privilege and work product protections;
  8. The treatment and protection of whistleblowers; and,
  9. Use of the media.

To avoid these conflicts, counsel should meet face-to-face with the prosecutor, as soon as possible, to begin learning the focus of the investigation, as well as the status of the Company and its Directors, Officers, and Employees as “targets,” “subjects” or “witnesses.” Hopefully, the prosecutor will welcome counsel’s initial contact as he may be just as eager as defense counsel to, inter alia, obtain information, explore the possibility of cooperation, facilitate the production of documents and schedule witness interviews.[1] Making contact with the prosecutor can also avoid a potential conflict by forestalling future Government attempts to contact Company employees in the absence of counsel; Government representatives might be ethically barred from further direct contacts with certain witnesses outside of counsel’s presence.[2]

1. Meaningful Cooperation with Law Enforcement.

The over-arching nature of the conflicts with Law Enforcement that Company counsel can experience when conducting an internal investigation arise from the degree to which the Company cooperates with the Government’s investigation. When deciding whether to cooperate, counsel should evaluate the Company’s position vis–vis Law Enforcement by applying the Department of Justice’s “Principles of Federal Prosecution of Business Organizations” (“DOJ Principles”) of the United States Attorney’s Manual (“USAM”) to the situation.[3] While the DOJ Principles do not explicitly define “cooperation” per se, this chapter of the USAM does advise prosecutors that they may consider, for purposes of cooperation credit, whether, inter alia, (1) the Company made a timely and voluntary disclosure of the wrongdoing, (2) the Company’s willingly provided relevant information regarding the wrongful conduct, and (3) if the Company identified relevant actors in the wrongdoing within and outside the Company (including senior executives).[4]

Therefore, if the internal investigation occurs before the onset of a Law Enforcement investigation, there is the possibility of a voluntary disclosure and “being the first in the door” to Law Enforcement.[5] Most prosecutors will look more favorably at a Company that voluntary discloses possible criminal conduct rather than a Company that conceals wrongdoing and only acknowledges its own wrongdoing after being caught.[6] Voluntary disclosure can decrease the likelihood that a prosecutor will indict the Company, or reduce the potential sentence should an indictment be brought. The Guidelines also recommend lighter sentences for an organization that meets its specific requirements in disclosing voluntarily.[7]

The DOJ Principles are clear that cooperation with Law Enforcement is only a mitigating factor in a case that is otherwise appropriate for indictment and prosecution of the Company.[8] A Company’s decision not to cooperate is not evidence of misconduct, as long as the lack of cooperation does not demonstrate “consciousness of guilt” (i.e., rebuffing lawful discovery requests or suborning perjury or false statements) or implicate criminal conduct.[9] Therefore, the absence of cooperation, by itself, does not necessitate an indictment of the Company any more than in the individual criminal context.[10]

2. Acquisition and Preservation of Documents.

The direction of an internal investigation can be dramatically influenced depending upon whether Law Enforcement obtains documents and things through the execution of a search warrant or pursuant to a subpoena. The need to obtain and assimilate key documents will be paramount for both Law Enforcement and Company counsel conducting an internal investigation. Document retention policies and “hold” requests are a prime example of where conflict can arise. Since Law Enforcement will want to ensure that all documentary evidence is preserved, counsel should strongly advise the client, both verbally and in writing, to preserve all Company records that could possibly touch the scope of the Law Enforcement investigation; counsel should also be sure to document their communication of this advice. The expanding use of electronic media in business (e.g., electronic documents and e-mail) has made document control a formidable and expensive task. Counsel should also make their clients aware of the related concerns of avoiding any allegations of obstruction of justice.[11]

Numerous conflicts can arise when Law Enforcement seeks privileged attorney-client communications via subpoena or seizes privileged communications during the execution of a search warrant. In the context of a subpoena, counsel must quickly ascertain the scope of the subpoena, obtain all documents and files that could pertain to the scope of the investigation, make reserve copies, conduct a thorough review for privileged communications, create a detailed privilege log, redact privileged portions of documents (if necessary) and, finally, produce all non-privileged materials and the privilege log to prosecutors by the Government’s deadline.

When requesting a continuance, counsel should request whatever reasonable amount of time is needed in order to meet the Government’s production requests. Counsel should attempt to keep their requests for deadline extensions to a minimum; counsel should always make sure that the amount of time requested is sufficient to complete the task at hand; frequent non-compliance with deadlines will damage counsel’s credibility with the Government.[12]

In the event that Law Enforcement executes a search warrant, the issues will be different. Execution of a search warrant implies that Law Enforcement has probable cause to believe that a crime has been or is being committed and that evidence of the crime is currently present at the scene of the search. This is a prime area for conflict with Law Enforcement.

The client’s immediate concern, aside from the presence of Law Enforcement and severe disruption of its business, will be whether Law Enforcement is taking documents which the Company needs for the day-to-day operation of its business. Many times, Law Enforcement will simply download information from computers, leaving the computers intact and in place; however, there are times where the Government will take all of the Company’s computers and servers. Law Enforcement will also seize paper documents. Access to documents and electronic information requires coordination with the Government or, in an adversarial situation, it will require a Motion under Federal Rule of Criminal Procedure 41(g) for the return of property.[13] In order to avoid an adversarial situation, Company counsel should have a discussion with the lead prosecutor regarding what arrangements can be made to allow for Company counsel to: (a) have access to and make copies of seized Company documents, (b) ensure the retention of the original documents, and (c) maintain the confidentiality of the Company’s proprietary information.

Government seizure of either the client’s or the lawyer’s files, computers, or both, will raise the issue of what precautions should be taken in order to preserve any privileges which may be available. Counsel should ensure that some procedure is in place to screen for privilege during the seizure (if possible), or immediately thereafter. This type of examination is usually accomplished by assigning the privilege review to a screening team in the prosecutor’s office and making certain that a Chinese wall is erected between the prosecutorial trial team and the screening team, in order to keep privileged information segregated. In extraordinary cases, defense counsel can seek to have the privilege review of properly-seized documents conducted through the appointment of a Special Master or the delegation of a Magistrate Judge.[14]

Company counsel should have multiple copies of a roster of all current and former in-house counsel at the Company over the last five years, as well as the names of all outside law firms, available for distribution to the agents executing the warrant.[15] This roster will put the Government on clear notice regarding the identities of those lawyers authorized to witness the execution of the search, as well as those lawyers likely to appear on privileged documents.[16]

3. Controlling Access to and Conducting Interviews of Directors, Officers and Employees.

Counsel conducting an internal investigation should always try to be the first person to interview potential witnesses. If Law Enforcement did indeed interview witnesses first, counsel should immediately seek to ascertain the focus of Law Enforcement’s investigation and concerns from these employees.

Conflict almost inevitably arises when Law Enforcement executes a search warrant and attempts to interview employees simultaneously with the search. While employees are not obligated to speak with Law Enforcement (absent a subpoena), counsel – if notified in time to take action – will be confronted with a dilemma under these circumstances. Where possible and without creating unnecessary conflict with Law Enforcement, counsel should never allow witnesses to be interviewed by Law Enforcement until counsel has had the opportunity to understand and test the witnesses’ story against a thoroughly detailed timeline of events.

When interviewing witnesses as part of an internal investigation, counsel should always try to avoid becoming a witness for Law Enforcement by using an investigator who can (a) memorialize the interview in a work-product memorandum and (b) testify, if necessary, at a later time about what was said.

Counsel should admonish Directors, Officers and Employees not to speak with any potential witness because there are severe penalties for “corruptly persuad[ing] another person” or for “engag[ing] in misleading conduct toward another person” with the intent to “influence, delay, or prevent the testimony of any person in an official proceeding.”[17]

4. Advice to Directors, Officers and Employees about Contact by Law Enforcement.

In the early stages of a Law Enforcement investigation, generally one or two Government agents will likely attempt to conduct informal interviews of employees by appearing at the employee’s home. By approaching the employee informally, agents will be trying to interview employees without counsel present. Employees are often caught off-guard and may make statements that are harmful to the Company, themselves or both. Errors in recollection or speculative statements may later be held up by the prosecution as “the truth” or, alternatively, as mischaracterizations intended to mislead the Law Enforcement investigation.[18]

Therefore, Company counsel must forewarn those Company Directors, Officers, and Employees who are likely to be unexpectedly contacted by Law Enforcement during an investigation. These warnings should be incorporated into the employee’s training and reiterated as soon as counsel has a suspicion of the existence of a Law Enforcement investigation. Such communications should include an offer by the Company to help employees find competent counsel. Employees need to come away from these meetings with an appreciation for the seriousness of the situation, and the need to retain counsel qualified in sophisticated criminal practice.[19]

If the interviewee has the foresight to contact counsel before the commencement of the interview, counsel should ask to speak with the agent, ask the agent to identify himself and his agency, and explain the nature of the investigation. Counsel should then state who he represents, i.e., the Company or the employee-interviewee, ask the agent to terminate the interview, and instruct the agent not to have any further contact or discussions with the interviewee outside of counsel’s presence.[20] Counsel should advise the interviewee of his rights[21] and ask that he wait until Company counsel can be present before proceeding with an interview. Finally, counsel should instruct the interviewee to obtain professional business cards from each agent present in order to confirm their identities.

When making arrangements for formal interviews with Law Enforcement, counsel should attempt to gain information about a number of matters, including:

  • Obtaining written confirmation from the prosecutor as to the interviewee’s status, i.e., subject, target, or witness;
  • The identities of the Government lawyers and agents, as well as defense counsel and investigators, who will be present at the interview;
  • Whether a record of the interview will be transcribed;
  • Whether defense counsel will receive a written copy of any transcript or Law Enforcement memorandum of the interview;
  • What licensing agencies the Government may notify as a result of the interview; and,
  • Whether defense counsel will receive any copies of any documents that are shown during the interview.

Counsel will want to have an investigator accompany them and the witness to the interview, as counsel does not want to become a witness if a dispute arises over what was said.[22]

5. Indemnification and Advancement of Fees for “Targets” and “Subjects.”

Company counsel may also have to confront the issue of whether to indemnify or advance legal fees to those employees deemed “targets” and “subjects” of the Law Enforcement investigation. As an initial matter, Company counsel must review their employment contracts, Company bylaws, and applicable state law for any obligation to cover such employee’s legal fees.[23] Additionally, the Department of Justice updated their “Principles of Federal Prosecution of Business Organizations” in 2008 by a memorandum authored by Deputy Attorney General Mark R. Filip (the “Filip Memo”)[24] which, inter alia, instructs prosecutors to “not take into account whether a corporation is advancing or reimbursing attorneys’ fees or providing counsel to employees, officers, or directors under investigation or indictment,” when evaluating cooperation credit.[25] Additionally, the Filip Memo directs prosecutors to abstain from asking the corporation to cease from advancing or reimbursing legal fees.[26]

It may be beneficial for the Company to advance the fees to a “target” or “subject” employee subject to a later determination of whether the employee is entitled to indemnification. The Company should require the employee to provide adequate assurance that all advanced fees will be refunded if it is ultimately determined that the employee is not entitled to indemnification.[27] All advances must be specifically approved by the Board of Directors or its designee before a commitment to the employee is made by Company counsel.[28]

6. Joint Defense and Common Interest Agreements.

In certain investigations, it can be beneficial for the potential defendants, including the Company, to coordinate their efforts by pooling information and resources. This relationship will necessarily result in some amount of shared work product and communications. Therefore, Company counsel performing the internal investigation, along with the employees’ lawyers, must make every effort to ensure that these communications and documents are protected by the joint defense, or common interest, privilege. Some prosecutors are skeptical of Joint Defense Agreements even though there is a substantial body of law supporting the concept of a common interest privilege embodied within the broader concept of the attorney-client privilege.[29]

The Filip Memo instructs prosecutors that a corporation’s “mere participation” in a joint defense agreement shall not preclude the corporation from receiving cooperation credit, and prosecutors cannot request that a corporation avoid entering into such agreements.[30] However, a corporation’s ability to seek cooperation credit can be limited if it enters into a joint defense, or common interest, agreement that, by its terms, limits the corporation’s ability to provide “some relevant facts” to the Government.[31]

As a further word of caution, the Eleventh Circuit has held that:

[W]hen each party to a joint defense agreement is represented by his own attorney, and when communications by one co-defendant are made to the attorneys of other co-defendants, such communications do not get the benefit of the attorney-client privilege in the event that the co-defendant decides to testify on behalf of the government in exchange for a reduced sentence.

United States v. Almeida, 341 F.3d 1318, 1326 (11th Cir. 2003) (also urging defense lawyers to insist that their clients enter into written joint defense agreements that contain a clear statement of the waiver rule articulated in this case). Therefore, counsel must exercise extreme caution when entering into a joint defense or common interest agreement as well as when making disclosures to co-parties under such an agreement.

7. Waiver of the Attorney-Client Privilege and Work Product Protections.

In some cases, the Company may have to waive privilege in order to render full pre-indictment discovery to the Government in furtherance of obtaining complete cooperation credit.[32] As Department of Justice policy on this point has changed a number of times in recent years, it is useful to review its evolution. In 1999, amid rising concerns that its charging decisions lacked uniformity, the DOJ issued the Holder Memo,[33] which instructed prosecutors evaluating the level of a corporation’s cooperation to consider, inter alia, the corporation’s willingness to waive attorney-client and work product privileges.[34] In 2003, the DOJ issued the Thompson Memo, which incorporated some parts of the Holder Memo and updated corporate charging guidelines.[35] The Thompson Memo, however, was roundly criticized in the legal community[36] and, in response to judicial criticism and congressional pressure,[37] the DOJ issued the McNulty Memo in 2006.

The McNulty Memo provided greater protections for privilege by mandating that prosecutors could seek privileged material only where the “purely factual information related to the underlying misconduct” that had been sought was insufficient, prosecutors had a “legitimate need” for such information, and they had obtained high-level approvals.[38]While prosecutors could not consider a company’s refusal to provide privileged material in its charging decision, a company’s agreement to waive privilege could be considered favorably in determining cooperation credit. However, corporations continued to experience pressure to voluntarily waive privilege under the McNulty Memo because its procedural safeguards only applied to prosecutors’ formal requests for waiver.[39]

In response to further pressure from the legal community and Congress, the DOJ issued the Filip Memo in 2008.[40] The Filip Memo, in changing the framework for requesting and assessing privilege waivers, mandates that a corporation’s cooperation credit be based, not on the waiver of any privilege, but on disclosure of “relevant facts” concerning the alleged misconduct, regardless of whether or not the source of these facts are privileged. The Filip Memo forbids prosecutors from requesting waivers of “core” attorney-client communications or work product,[41] as well as barring prosecutors from conditioning cooperation credit upon the waiver of privilege with respect to this information.[42] Also, corporate counsel is encouraged to report prosecutors who violate this guidance to their supervisors, including the appropriate United States Attorney or Assistant Attorney General.[43]

While the Filip Memo instructs prosecutors to cease the common past practice of requesting protected notes or interview memoranda generated by attorneys during internal investigations, the Memo still leaves room for conflicts regarding the waiver of privilege. For example, while the Filip Memo places emphasis on obtaining “relevant facts,” the “relevant facts” of the wrongdoing uncovered in an internal investigation can conceivably include the attorneys’ refinement of numerous documents and witness interviews, i.e., work product.[44] Furthermore, where different witnesses may have given conflicting accounts, the disclosure of “relevant facts” may involve discussing what the various witnesses said, this can invoke attorney-client communications.[45] Therefore, under the Filip Memo, there remain many instances where corporations may have to waive privilege[46] in order to receive cooperation credit.[47]

8. Protection of Whistleblowers.

Many federal and state laws encourage employees to report misconduct and improper acts to the Government by providing protection from retaliatory action by their employers. One such “whistleblower” law is the federal False Claims Act,[48] which offers a handsome reward to employees that report improprieties to the Government, and specifically protects these employees from any adverse employment action (including discrimination) “because of lawful acts done by the employee” in support of a claim brought under the Act.[49] In these instances, whistleblowers are entitled to civil relief that includes:

[R]einstatement with the same seniority status such employee would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.[50]

Additionally, the Sarbanes-Oxley Act provides for criminal prosecution of retaliators.[51] Of course, officers, employees, agents and others who engage in retaliatory conduct against whistleblowers also remain under the risk of prosecution for obstruction of justice.

The Company’s treatment of whistleblowers can have a significant effect on the progress of the Government’s investigation and the prosecutor’s dealings with defense counsel. For example, in the pre-indictment stage, a Company’s termination of an identified whistleblower could severely prejudice the Company’s position.

An internal investigation may uncover the identity of a whistleblower when that person refuses to cooperate with the Company’s investigation. While the Company has the right to interview employees and obtain documents from them, as well as the right to terminate or discipline a whistleblower for disobeying reasonable and lawful requests, the Company must be very cautious to establish that this person’s insubordination led to their discipline or termination, and was not the result of their cooperation with the Government.[52]

When the internal investigation does not reveal a whistleblower, counsel must be mindful that the Government is under no obligation to identify the number or the names of whistleblowers. Therefore, Company counsel must be cognizant that any suspicions they may have could be mistaken or incomplete. Therefore, Company counsel should keep its beliefs as to the identity of the whistleblower(s) confidential so that the Company does not incur liability for any unintentional retaliatory conduct by one of its employees towards a whistleblower.

9. Use of the Media.

Press coverage is always a risk; the client or members of the Company must be told to make statements of “no comment” if they are contacted by the media. Under Model Rule 3.6(c), “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.”

Beware, however, that statements to the media – particularly if critical of Law Enforcement – can cause a serious conflict to arise with prosecutors. Moreover, statements to the media can challenge the prosecutor to go forward with an investigation, bring unwanted attention to the Company, cause witnesses to come forward, or be perceived as prejudicing the Judge or a potential jury. Finally, counsel should track and preserve videotapes or copies of any and all media reports (television, print and electronic) having to do with the investigation.

CONCLUSION

Conducting an internal investigation in the shadow of an active Law Enforcement investigation is a process that is fraught with opportunities for conflict with prosecutors. Depending on how the potential wrongdoing comes to the attention of the Company and Law Enforcement, counsel will often be thrust into conducting an internal investigation of a Company that is in “crisis mode.” Therefore, counsel must take great care to deftly navigate areas of potential conflict with prosecutors.


[1] Dan K. Webb, Robert W. Tarun, and Steven F. Molo, Corporate Internal Investigations15.03 (2002).

[2] See ABA Model Code of Professional Responsibility, Disciplinary Rule 7-104(A)(1):

During the course of his representation of a client, a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation by a lawyer in the matter unless he has the prior consent of the lawyer representing such party or is authorized by law to do so.

But see Ga. S.Ct. Formal Advisory Opinion No. 87-6 (1989) (stating that an attorney may not ethically interview an employee of an opposing party corporation without the consent of the corporation or its counsel, where the employee is either (1) an officer, a director, or other employee with authority to bind the corporation, or (2) an employee whose acts or omissions may be imputed to the corporation in relation to the subject matter of the case).

[3] See USAM 9-28.000 et seq.

[4] USAM 9-28.700(A).

[5] Furthermore, the Antitrust Division “has established a firm policy…that amnesty is available only to the first corporation to make full disclosure to the government.” See USAM 9-28.400, 9-28.750.

[6] To wit, the DOJ encourages corporations to conduct internal investigations and disclose “relevant facts” to authorities as part of corporate compliance programs. Some agencies, such as the Securities and Exchange Commission and the Environmental Protection Agency, have formal voluntary disclosure programs. See USAM 9-28.750.

[7] See U.S.S.G. 8C2.5(g).

[8] USAM 9-28.700(A).

[9] Id.

[10] Id.

[11] See 18 U.S.C. 1519 (2002). The Sarbanes-Oxley Act of 2002 (“SOX”) has broadened the reach of obstruction of justice statutes. Enacted as SOX 802, this section makes it a felony to destroy, mutilate, or conceal any record or document in contemplation of any investigation of any matter within the jurisdiction of any department or agency of the United States, punishable by appropriate fine, up to 25 years imprisonment, or both.

[12] See USAM 9-28.730 (in evaluating cooperation credit, the “incomplete or delayed production of records” by the corporation can be considered an example of “conduct intended to impede the investigation”).

[13] Fed.R.Crim.P. 41(g) reads,

A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

[14] See Edna S. Epstein, The Attorney-Client Privilege and the Work Product Doctrine, 1339-41 (5th ed. 2007).

[15] See Webb, 13.10[2].

[16] See also Webb, 13.03[5]. In the ordinary course of business, in-house lawyers and outside law firms should clearly and conspicuously mark documents that are protected by privilege, e.g., “ATTORNEY CLIENT PRIVILEGED COMMUNICATION” and “ATTORNEY WORK PRODUCT PRIVILEGED,” where applicable; this will put future investigators and others on clear notice of privileged documents. All Company legal documents should be segregated and stored separately from other business documents.

[17] 18 U.S.C. 1512.

[18] See Webb, 13.02[6].

[19] See Webb, 13.02[6].

[20] See Webb, 13.02[1].

[21] For example, the employee may elect or decline to submit to an interview and may request to have counsel present.

[22] See Webb, 13.02[5].

[23] See e.g., O.C.G.A. 14-2-850 et seq.; Del. Corp. Code 145; Cal. Corp. Code 317.

[24] “Principles of Federal Prosecution of Business Organizations,” Memorandum from Mark R. Filip, Deputy Attorney General, to Heads of Department Components and United States Attorneys (Aug. 28, 2008) (available at http://www.usdoj.gov/opa/documents/corp-charging-guidelines.pdf), also found at USAM 9-28.000 et seq.

[25] USAM 9-28.730.

[26] The Filip Memo points out, however, that this guidance is not meant to limit the reach of obstruction of justice statutes. For example, nothing in the Filip Memo prohibits exposure to obstruction of justice charges where the attorney fees were advanced conditional to the employee adhering to a version of the facts that the corporation and the employee knew to be false. See Id.

[27] See Webb, 5.04[1]. Generally, an employee must have acted in good faith and have reasonably believed that their conduct was in, or not opposed to, the best interests of the corporation in order to be eligible for indemnification. A person cannot act in good faith when they deliberately violates federal criminal law and “public policy prohibits indemnification of corporate officers for intentional illegal conduct.”

[28] See O.C.G.A. 14-2-850 et seq.; Del. Corp. Code 145(e).

[29] See generally Edna S. Epstein, The Attorney-Client Privilege and the Work Product Doctrine, 196 – 218 (4th ed. 2003).

[30] USAM 9-28.730.

[31] Id. (the Filip Memo also recommends that corporations should consider only entering into those agreements that provide the appropriate flexibility to seek cooperation credit).

[32] See USAM 9-28.720; USSG 8C2.5(g).

[33] “Principles of Federal Prosecution of Business Organizations,” Memorandum from Eric H. Holder Jr., Deputy Attorney General, to Heads of Department Components and United States Attorneys (June 16, 1999).

[34] See Mark J. Stein and Joshua A. Levine, The Filip Memorandum: Does It Go Far Enough?, New York Law Journal (September 11, 2008) (available at http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202424426861).

[35] See United States v. Stein, 541 F.3d 130, 136 (2d. Cir. 2008).

[36] To wit, the Federal Sentencing Commission responded to similar legal industry pressure by amending USSG 8C2.5, Commentary Note 12, in 2006, to excise language that appeared to encourage the waiver of the attorney-client privilege. See Appendix C, Amendment 695.

[37] See United States v. Stein, 435 F. Supp. 2d 330 (S.D.N.Y. 2006); affirmed 541 F.3d 130 (2d. Cir. 2008); and Press Release, U.S. Senate Judiciary Committee, “Specter Introduces Attorney-Client Privilege Protection Act of 2006” (Dec. 7, 2006).

[38] “Principles of Federal Prosecution of Business Organizations,” Memorandum from Paul J. McNulty, Deputy Attorney General, to Heads of Department Components and United States Attorneys (Dec. 12, 2006) (available at http://www.usdoj.gov/dag/speeches/2006/mcnulty_memo.pdf ).

[39] See Stein and Levine; and Michael W. Peregrine and Patrick S. Coffey, The “Filip Memorandum” and Stein: Relevance to Healthcare Providers, American Health Lawyers Association, Business Law and Governance Practice Group (September 2008) (available at: http://www.mwe.com/info/pubs/peregrine_ahla0908.pdf).

[40] See Peregrine and Coffey.

[41] See USAM 9-28.720(b) (defining “core” privileged materials as communications reflecting consultations “with corporate counsel regarding or in a manner that concerns the legal implications of the putative misconduct at issue,” legal advice provided by corporate counsel in an internal investigation report, and other non-factual work product, such as an attorney’s mental impressions or legal theories).

[42] USAM 9-28.720.

[43] USAM 9-28.760.

[44] See Stein and Levine.

[45] See Stein and Levine.

[46] Although beyond the scope of this article, counsel should be cautious about waiver of the privilege opening up discovery opportunities for third parties in parallel, collateral litigation. See, e.g., McKesson Corp. v. Green, 279 Ga. 95 (2005).

[47] The Filip Memo also strips away some of the procedural safeguards of the McNulty Memo, e.g., prosecutors are no longer required to seek high-level approvals to seek factual material even where its disclosure may require a privilege waiver.

[48] 31 U.S.C. 3729 et seq.

[49] 31 U.S.C. 3730(h).

[50] Id.

[51] 18 U.S.C. 1513(e), states:

Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.

[52] Brad D. Brian and Barry F. McNeil, Internal Corporate Investigations, 189-90 (2nd ed. 2003).