Sixth Circuit upholds attorney-client privilege and work product protection over corporation’s internal investigation documents

The US Court of Appeals for the Sixth Circuit recently issued a significant decision in In re FirstEnergy Corporation,[1] granting a writ of mandamus and vacating a district court order that had compelled the production of internal investigation documents in a securities class action.

The October 3, 2025 decision provides important guidance for companies facing government investigations and related civil litigation, reaffirming robust protections for the attorney-client privilege and the work product doctrine – even when internal investigations inform subsequent business decisions.

Background

FirstEnergy Corporation (FirstEnergy), an Ohio-based public utility, became embroiled in a high-profile bribery scandal involving alleged payments to Ohio state officials to secure favorable legislation. Following federal criminal charges and subpoenas, FirstEnergy and its board retained outside counsel to conduct internal investigations.

Shareholders subsequently filed securities fraud class actions and sought discovery of the internal investigation materials. The district court concluded that FirstEnergy initiated the investigations for business advice, rather than legal advice, because the company later used the fruits of its investigations for business decisions. Based on this conclusion, the district court ordered production of these documents, prompting FirstEnergy to seek mandamus relief from the Sixth Circuit.

Key holdings

• The attorney-client privilege may apply to internal investigations: Documents generated during internal investigations by outside counsel may be protected by the attorney-client privilege, even if used for business decisions.
  
  
• The work product doctrine may protect investigative materials: Materials prepared in anticipation of litigation are shielded, including those created in response to government investigations and shareholder lawsuits, even if used for subsequent business decisions.
  
  
• Legal advice sought for a business purpose does not preclude privilege and work product protection: In vacating the district court’s decision requiring disclosure of the investigation documents, the Sixth Circuit held that none of FirstEnergy’s business purposes for seeking legal advice “transforms the communications and legal work into something other than legal advice.”[2]
  
  
• The circumstances surrounding the creation of documents is key: As the Sixth Circuit noted, whether privilege or work product protection applies is an “intensely practical” inquiry that “requires acute attention to ‘the circumstances surrounding the documents’ creation.”[3]
  
  
• Sharing information with auditors does not waive privilege: Disclosure to FirstEnergy’s independent auditors did not waive privilege or work product protection because “only disclosure to an adversary will waive work-product protection.”[4]
  
  
• Mandamus relief appropriate: Mandamus is warranted where compelled disclosure of privileged materials represents a clear departure from established principles.

Implications for corporate clients

• Internal investigations remain protected: Companies can engage outside counsel for internal investigations with confidence in privilege protections.
  
  
• Business use does not destroy privilege: Legal advice used for business decisions retains its privileged status in the Sixth Circuit.
  
  
• Privilege logs and stipulations are permitted: Parties may stipulate to privilege log requirements.
  
  
• Handle auditor disclosures carefully: Sharing non-privileged information with auditors does not waive privilege, but caution is advised.

Takeaways

This decision strengthens the ability of companies to conduct thorough internal investigations without worry that privileged communications or attorney work product will be subject to broad discovery in related civil litigation.

It also clarifies that privilege and work product protections are not lost simply because legal advice is used to inform business decisions or shared with non-adversarial third parties such as auditors.

Contact

For more information about protecting internal investigations and privileged communications, please contact your DLA Piper relationship attorney.

 

^{[1] No. 24-3654, 2025 WL 2814286 (6th Cir. Oct. 3, 2025).}

^{[2] Id. at *3.}

^{[3] Id. at *4.}

^{[4] Id. at *8.}