9 October 2025
Sixth Circuit protects privileged materials and work product from internal investigation via mandamus
The US Court of Appeals for the Sixth Circuit recently granted a writ of mandamus in In re FirstEnergy Corp., prohibiting the disclosure of materials generated in an internal investigation that are protected by the attorney-client privilege and the work product doctrine.
The October 3, 2025 decision reaffirms that investigations conducted by outside counsel for purposes of providing legal advice remain protected, even when their findings are used for business decision making, and underscores the importance of preserving these protections in corporate investigations in the face of imminent or ongoing litigation.
Background
FirstEnergy Corporation, an Ohio-based public utility, faced scrutiny over an alleged bribery scheme related to the passage of Ohio House Bill 6. Following the filing of federal charges against a state legislator and the issuance of subpoenas directed at the company, FirstEnergy and its board of directors retained outside counsel to conduct an internal investigation. These investigations were initiated in anticipation of and in response to a wave of criminal, civil, and regulatory actions, including shareholder lawsuits.
During discovery, plaintiffs sought the production of documents generated in the internal investigation. The district court ordered their production, prompting FirstEnergy to seek the extraordinary mandamus relief from the Sixth Circuit. The Sixth Circuit granted the mandamus, making clear that the production order irreparably threatened the fundamental protection of the attorney-client privilege and work product doctrine in a way not remediable through an ordinary appeal.
Attorney-client privilege
The Sixth Circuit reiterated that the attorney-client privilege covers confidential communications between a company and its counsel made for the purpose of obtaining legal advice regarding potential criminal or civil liability.
Relying on the US Supreme Court’s decision in Upjohn Co. v. US, the Sixth Circuit concluded that FirstEnergy’s retention of outside counsel to conduct internal investigations and provide legal advice in the wake of governmental investigations and litigation falls within the scope of the privilege.
The Sixth Circuit rejected the district court’s reasoning that subsequent business use of the investigative findings undermined the privilege. It emphasized that the privilege inquiry focuses on the purpose of the communication at the time it is made, not on later business uses. When the predominant purpose is legal – even if the informed advice also influences business decisions – the privilege remains intact.
Work product doctrine
The court likewise held that the work product doctrine protects the internal investigation materials because they were prepared “because of” the reasonable anticipation of litigation. It pointed to the “tsunami” of legal and regulatory actions facing FirstEnergy when the investigations were commissioned, concluding that both the timing and purpose of the investigations satisfy the requirements for work product protection.
Applying the “because of” test, the court explained that materials are protected even if they also serve business or compliance purposes, so long as they would not have been generated in substantially similar form in the absence of the threat of litigation.
Implications
The decision reinforces the robust protections of the attorney-client privilege and work product doctrine in the context of corporate internal investigations, particularly when undertaken in response to imminent or ongoing legal proceedings. It also offers helpful guidance for companies facing parallel criminal, civil, and regulatory matters, highlighting the need to maintain clear protocols for the handling and control of privileged materials.
For more information on the implications of this decision or best practices for protecting privileged materials in internal investigations, please contact Sonia Torres or your DLA Piper attorney.
