There are generally no differences in the elements that a litigant must satisfy to withhold documents and/or communications under the attorney-client privilege or work product doctrine in civil, criminal, regulatory or investigatory situations. However, with regard to regulatory and investigatory situations, companies must make sure that their legal departments (or outside counsel) conduct any internal investigations or, at the very least, direct the personnel involved in the investigations, including nonlegal employees. Otherwise, the attorney-client privilege and/or work product doctrine may not attach to the communications exchanged during the investigation.

Also, it should be noted that the crime-fraud exception, which provides that communications made in furtherance of a crime are not privileged, is more likely to apply in the context of criminal and investigatory situations.

Documents created during internal investigations, including notes of interviews with employees, are generally protected by the attorney-client privilege and work product doctrine. However, communications (including interviews of employees) are only privileged if they are "for the purpose of seeking, obtaining, or providing legal assistance," and the work product doctrine only protects documents and communications that are exchanged in "anticipation of litigation." In that light, courts generally hold that communications exchanged during internal investigations are only privileged if the "primary purpose" of the investigation was to seek or provide legal advice.^[1]

Further, the work product doctrine will only apply if the memoranda or other documents were prepared in anticipation of litigation rather than in the ordinary course of business, or for a business-related purpose.^[2]

Whether notes of interviews with employees during investigations are privileged also depends on whether the relevant jurisdiction applies the "control group" test — that is, whether the communication is made by "top management" as well as "an employee whose advisory role to top management in a particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority."^[3] In jurisdictions that apply the "control group" test rather than the federal Upjohn standard, notes of interviews of non-control group employees may not be privileged.^[4]

[1] See, e.g., Pitkin v. Corizon Health, Inc., 2017 U.S. Dist. LEXIS 208058, at *9 (D. Or. Dec. 18, 2017); see also Green v. The Kroger Co., No. 4:20-cv-01328, 2022 U.S. Dist. LEXIS 66281, at *7 (S.D. Tex. Apr. 11, 2022).

[2] See, e.g., Banneker Ventures, LLC v. Graham, 253 F. Supp. 3d 64, 71 (D.D.C. 2017) (memoranda reflecting communications exchanged in employee interviews were not protected by the work product doctrine because the interviews were initially conducted for a "business purpose" and only later became relevant to potential litigation); see also Wengui v. Clark Hill, PLC, 338 F.R.D. 7, 10 (D.D.C. 2021) (holding that an investigation report generated in connection to a cyber-security breach would have been created for business purposes irrespective of litigation and, therefore, was not protected work product).

[3] See, e.g., Resurrection Healthcare v. GE Health Care, No. 07 C 5980, 2009 U.S. Dist. LEXIS 20562, at *7 (N.D. Ill. Mar. 16, 2009).

[4] See id. at *10-11.