I. Who holds the privilege in internal investigations and audits
A. Privilege considerations when interviewing employees
B. Privilege within the corporation during the investigation
C. Protecting communication among management
D. Privilege protections for communications with former employees
E. Audit committees and reporting to the board
F. Third parties in investigations
G. The Garner doctrine: access to investigatory materials by shareholders and other beneficiaries of fiduciary relationships
II. Waiver
A. Scope of waiver (including Rule 502)
B. Types of waiver
C. Disclosure of the investigative report
D. Waiver to governmental agencies
III. Disclosure to a company's auditors without waiving the company's privilege
A. Auditor requests
B. Risk of waiver
C. The "treaty"
D. Recommendations
IV. Best practices for preserving privilege
A. Understanding the scope of the privilege in the relevant jurisdiction
B. Active engagement of counsel from the outset of an investigation
C. Structuring the investigation to take full advantage of the scope of attorney-client privilege in the relevant jurisdiction
D. Documentation authorizing and describing the purpose of the investigation
E. Clarification of in-house counsel's role
F. Retention of outside counsel
G. Documentation and labeling of confidential communications and documents
H. Education/training
V. Controlling privileged material to reduce the possibility of waiver
A. Segregate facts from documents that contain attorney work product
B. When facing a demand for privileged material, negotiate protection from future third-party discovery
VI. Limited waiver agreements
A. Do not acquiesce when privilege rights are contested
B. Joint defense agreements
C. Control drafting of and access to investigation reports
