June 20, 2018 Articles

Privilege in Internal Investigations: SEC v. Herrera

Maintaining privilege while obtaining cooperation credit has become a balancing act under the Herrera opinion.

Jane Shvets and Jil Simon

A recent decision by a federal magistrate judge in Florida underscores the need for counsel conducting internal investigations to consider carefully the consequences of providing oral summaries of witness interviews to government authorities. In December 2017, the court held that the common practice of providing so-called interview downloads to the government resulted in a waiver of work-product protection over the attorney-prepared memoranda of those interviews. See Order on Defendants’ Motion to Compel Production from Non-Party Law Firm, SEC v. Herrera, 2017 WL 6041750 (S.D. Fla. Dec. 5, 2017) [hereinafter Herrera Order]. In conducting the work-product waiver analysis, the court held that there was “little to no substantive distinction” between producing written interview memoranda on the one hand and providing detailed oral summaries of the information contained in those interview memoranda on the other. The Herrera opinion leaves open the question of whether attorneys’ interview notes, which are usually created contemporaneously with the interviews and form the basis for the memoranda, retain work-product protection after the interview downloads have been provided to the government.

This article provides a brief overview of the work-product doctrine and the Herrera opinion. It then explores the uneasy balance between maintaining, to the extent possible, work-product protection over internal investigation materials and cooperating with government authorities.

The article concludes by offering possible approaches to that issue in light of the government’s expectations regarding cooperation and the Herrera opinion.

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