White Collar Roundup - January 2018

Investigating Attorneys Lose Work-Product Protection in SEC Case

The U.S. District Court for the Southern District of Florida issued a ruling in SEC v. Herrera that might upend or at least alter the way law firms and companies cooperate with regulators in internal investigations. As the court said in the opening of its opinion, "Very few decisions are consequence-free events. The discovery dispute at issue here is no exception to this practical truism." In the case, a law firm conducted an internal investigation into certain financial and business activities and provided "oral downloads" of witness interview notes to the SEC, which was investigating the company. In the follow-on litigation the SEC brought against the CEO of the company, Mathias Herrera, the defendant sought the notes from the law firm's interviews. The firm refused to provide them, claiming they were protected by the attorney work-product doctrine. Herrera moved to compel, and the court held that