United States: Federal And State Courts Issue Helpful Investigation-Related Decisions: Part II – McGuireWoods LLP

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Last week’s Privilege Point described a federal court case
holding that explicit reliance on a consultant’s investigation
waived fact work product protection related to the investigation
— but not opinion work product protection.

About two weeks later, in University of Texas System v.
Franklin Center for Government & Public Integrity
, the
Texas Supreme Court issued a very favorable investigation-related
decision, finding that Kroll investigators were protected as a
“lawyer’s representative” because they acted under
the direction of UT’s General Counsel; Kroll’s
investigation into allegations of undue influence in the
University’s admissions process deserved privilege protection,
as shown by affidavits “prepared after the fact, as are most
affidavits prepared in the litigation context.” No. 21-0534,
2023 Tex. LEXIS 627, at *25-26 (Tex. June 30, 2023). The Court then
found that the publication of Kroll’s report did not waive
privilege as to “all the privilege-log documents” (as the
lower court had ruled), but instead only triggered a subject matter
waiver requiring production of: (1) internal UT privileged emails,
but only to the extent that Kroll’s published report
“contains quotes or very specific paraphrases of the
emails”; (2) Kroll’s interview notes, but only to the
extent that the Kroll report “amounted to disclosure of a
‘significant part’ of the [interview] communication.”
Id. at *6-7, *30, *33.

Lawyers arranging for internal corporate investigations should
take heart in the federal court’s affirmation of continuing
protection for opinion work product despite a waiver of fact work
product protection. And the Texas Supreme Court’s favorable
investigation-related ruling may serve as a model for lawyers’
investigation and later publications of the results.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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