Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating With the Government: Establishing Privilege and Work Product in an Investigation (Part One of Three)

Protecting sensitive communications and investigation documents under the attorney-client privilege or work product doctrine is crucial when companies cooperate with the government during breach investigations. Challenges often arise because the privilege and, to a lesser extent, the work product doctrine generally require confidentiality and cooperating with law enforcement often necessitates disclosure. In a three-part guest article series, Eric J. Gorman and Brooke A. Winterhalter, Skadden partner and associate, respectively, seek to unwind the conundrum by closely examining the interplay between the attorney-client privilege and work product protection on the one hand, and cooperation with the government on the other. This first part in the series addresses how and when these protections are created during internal investigations, and steps that can be taken to establish and maintain them. See also “Attorney-Consultant Privilege? Key Considerations for Invoking the Kovel Doctrine (Part One of Two)” (Nov. 16, 2016); Part Two (Nov. 30, 2016).

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