Sixth Circuit Upholds Privilege for Internal Investigations
In an important decision that emphatically upholds application of the attorney-client privilege and work product doctrine to internal investigations, the Sixth Circuit in In re FirstEnergy Corp., No. 24-3654 (6th Cir. Oct. 3, 2025), granted a writ of mandamus reversing the district court’s order compelling production of all documents related to outside-counsel led internal investigations.
FirstEnergy was implicated in an alleged bribery scheme. After the federal government released a criminal complaint charging an Ohio legislator with violating RICO, and describing how an unnamed company (understood to be FirstEnergy) and its executives contributed millions to the campaign funds of Ohio politicians to secure passage of favorable legislation, FirstEnergy and an independent committee of its board of directors separately retained outside counsel to conduct internal investigations. Numerous investigations and lawsuits soon followed, including securities litigation.
In the securities litigation, plaintiffs sought all documents related to both investigations. A special master recommended that the district court grant the plaintiffs’ motion and the district court accepted the recommendation. After the district court denied FirstEnergy’s motion to certify the order for interlocutory review, FirstEnergy filed a petition for writ of mandamus with the Sixth Circuit Court of Appeals.
In a decision notable for its strength and clarity, the Sixth Circuit granted FirstEnergy’s petition and vacated the district court’s production order. The decision observes that just as in the seminal Upjohn case regarding attorney-client privilege for corporations, FirstEnergy and its board retained lawyers to secure legal advice through internal investigations into the company’s potential criminal and civil wrongdoing. “In asking for outside counsel’s analysis about what happened and in seeking legal advice about what to do in response to the very significant legal risk it suddenly faced, FirstEnergy and the board clearly sought legal advice.”
Importantly, the decision rejects the district court’s assertion that FirstEnergy initiated the investigations primarily for business advice, purportedly because FirstEnergy later used the results of the investigations in making business decisions. “But these bedrock protections are not so easily pierced,” the Sixth Circuit declared. Rather, “what matters under the attorney-client privilege is whether a company seeks legal advice, not what it later does with that advice.”
The court also held that the work-product doctrine protects FirstEnergy’s internal investigations from discovery, finding that they were initiated because of FirstEnergy’s reasonable anticipation of litigation, as borne out in the “onslaught of legal and regulatory action” that soon followed.
Finally, the Sixth Circuit court found that the district court committed legal error in rejecting a board member’s declaration because it was signed “under penalty of perjury,” but without expressly stating that its statements were “true.” The court found that the governing statute, 28 U.S.C. § 1746(2), requires only substantial compliance, and that when someone swears a statement “under penalty of perjury” that person is presumed to tell the truth.
Reflecting the importance of the privilege issues in the case, over 40 amici submitted briefs to the Sixth Circuit. Redgrave LLP submitted an amicus brief on behalf of Lawyers for Civil Justice.
To read the full decision, click here.