Sixth Circuit Backs Disclosure Protections for Internal Investigations

Key Takeaways

• The Sixth Circuit reaffirmed the applicability of privilege and work-product protections for companies conducting internal investigations.
• The lower court’s clear error resulted in the “extraordinary” remedy of mandamus relief.
• Companies seeking to avoid discovery of investigation materials should implement best practices when conducting investigations.

In its recent decision granting mandamus relief in In re FirstEnergy Corp., the U.S. Court of Appeals for the Sixth Circuit delivered an emphatic message that the attorney-client privilege and work-product doctrine remain alive and well for companies conducting internal investigations—even when companies later use the investigation results for business decisions.

The Sixth Circuit issued its October 3, 2025, ruling in one of the slew of lawsuits arising from the bribery scandal involving FirstEnergy, an Ohio public utility company, and Larry Householder, the former speaker of the Ohio House of Representatives. In late 2016, FirstEnergy allegedly initiated a scheme to facilitate the passage of a bailout bill by donating millions of dollars to Householder’s campaign funds in exchange for Householder’s help in ensuring the passage of the bill. In 2020, the federal government brought criminal charges against Householder and issued subpoenas to FirstEnergy in connection with the scheme. Soon thereafter, and ahead of the initiation of numerous regulatory investigations and lawsuits, FirstEnergy and an independent committee of its board of directors each retained outside counsel to conduct internal investigations into the allegations.

In the instant shareholder suit against FirstEnergy, the claimants sought discovery of the materials generated in the internal investigations. The U.S. District Court for the Southern District of Ohio accepted a special master’s recommendation to grant the requested discovery despite FirstEnergy’s claims that the materials were protected by the attorney-client privilege and the work-product doctrine. After the district court denied FirstEnergy’s request for interlocutory review, FirstEnergy filed a petition for mandamus relief—a “drastic” remedy, in the words of the Sixth Circuit—to overturn the district court’s privilege and work-product rulings.

The Sixth Circuit first addressed the attorney-client privilege and held that the case fell squarely within the framework established by the Supreme Court of the United States in Upjohn Co. v. United States. Under that landmark ruling, a company’s communications are privileged when it “seeks legal advice to assess risks of criminal and civil liability.” On the Sixth Circuit’s reading of the record, that is precisely what FirstEnergy and its independent board committee did: They initiated internal investigations to obtain legal advice from outside counsel regarding “what acts occurred, whether those acts were illegal, and what criminal and civil consequences might ensue.” The Sixth Circuit rejected the district court’s conclusion that, because FirstEnergy later made business decisions based on the investigations, the investigative materials were not privileged. According to the Sixth Circuit, “[w]hat matters under the attorney-client privilege is whether a company seeks legal advice, not what it later does with that advice.”

Turning to the work-product doctrine, the Sixth Circuit held that FirstEnergy satisfied the first requirement for the application of the doctrine: that the materials were created due to FirstEnergy’s reasonable anticipation of litigation rather than for ordinary business purposes. Pointing to “[t]he onslaught of legal and regulatory action surrounding FirstEnergy’s investigations” amid the “civil and criminal litigation crisis FirstEnergy faced,” the Sixth Circuit again rejected the district court’s finding that FirstEnergy conducted its investigations for business purposes only.

Finally, the Sixth Circuit addressed the requirements for mandamus relief. While noting that mandamus is “a drastic and extraordinary remedy reserved for really extraordinary causes,” the Sixth Circuit ruled that the district court had “plainly” made an error that was “clear” and “beyond the bounds of its discretion.” Additionally, the Sixth Circuit pointed to the disruption that the district court’s decision could cause if left in place. That the Sixth Circuit granted mandamus relief demonstrates how glaring an error it viewed the lower court’s ruling to be.

In re FirstEnergy Corp. stands as a strong defense of privilege and work-product protection in connection with internal investigations, even where key business considerations are in play. In reaffirming the fundamental principles of these doctrines, the Sixth Circuit’s decision offers a good reminder that companies should exercise caution in their treatment of investigation materials and should adhere to traditional best practices when conducting investigations. Specifically, companies should:

• Ensure lawyer involvement in and oversight of the investigation from the outset.
• Consider hiring outside counsel to advise on the investigation, as privilege assertions over investigations conducted by in-house counsel will likely be more closely scrutinized than investigations conducted by outside counsel.
• State in any engagement letters and investigation plans that the purpose of the investigation is to provide legal advice to the client.
• Structure the internal investigation so that non-lawyer involvement is supervised by and conducted clearly at the direction of in-house counsel.
• Consider formally documenting the legal department’s engagement of any non-lawyer “agent” through an email or memo that states:
  • The purpose of the investigation is to provide the company with legal advice;
  • The investigation is being conducted at the direction of in-house counsel;
  • The agent will take direction from legal counsel only;
  • The agent must treat the investigation as confidential and privileged (the agent must not discuss the investigation or share any materials with any third parties); and
  • The agent will report back only to legal counsel.
• Have lawyers and non-lawyer agents provide meaningful Upjohn warnings to witnesses prior to interviews.
• Ensure that all notes and memorandums of interviews (especially those prepared by nonlegal employees) have a “privileged and confidential” header.
  • Include language to ensure work-product protection as well: “This memorandum reflects my mental impressions, opinions, and observations concerning . . .”
  • If prepared by non-lawyers, the notes and memorandums should make clear that the interview was conducted at the direction of counsel.
• Maintain confidentiality of investigative materials and report and share only with individuals and parties who are within the privilege (i.e., clients, attorneys, and agents acting at the direction of attorneys).
• When using electronic means to share investigative materials, exercise caution in order to maintain confidentiality.
  • Do not use independent board members’ non-company email addresses.
  • Label the cover email “privileged and confidential.”
  • Encrypt or password-protect the investigative materials.
• Communicate orally when possible in order to avoid compelled disclosure.

Taking these steps will help increase the likelihood that investigation materials will remain protected from discovery.