Privilege Under Pressure: Managing Legal Risk In Internal Investigations

Internal investigations are increasingly central to effective corporate governance, driven by heightened expectations around transparency, accountability and responsiveness to concerns about corporate conduct. As these investigations become more frequent and sophisticated, understanding their legal implications—including the scope and application of privilege—is essential.

A recent decision from the United States Court of Appeals for the Sixth Circuit in FirstEnergy Corporation¹has prompted renewed attention to privilege in the context of internal investigations. While the case offers valuable insights into U.S. law, it also provides a timely opportunity to examine how Canadian courts approach privilege in similar circumstances. This article uses the U.S. decision as a springboard to explore the Canadian legal framework and offer practical guidance for structuring internal investigations to preserve privilege.