Safeguarding Privilege In Internal Investigations

Companies undertaking internal investigations must take a number of steps in order to ensure that documents produced in the course of those investigations will be subject to privilege. Not all internal investigations are privileged, even if carried out with the knowledge of corporate counsel. Only those undertaken for the dominant purpose of preparing for litigation or which entail the seeking or giving of legal advice benefit from legal privileged.

Canadian cases such as Saturley v. CIBC World Markets Inc. and Société Air France v. Greater Toronto Airports Authority have held that when the results of an investigation may have a bearing on business decisions or changes to internal procedures, even where the report is prepared with the involvement of in-house counsel, those alternate purposes may lead to a determination that the investigation was not undertaken for the dominant purpose of preparing for litigation. American cases such as U.S. ex rel. Baklid-Kunz v.