Federal And State Courts Issue Helpful Investigation-Related Decisions: Part II

Last week's Privilege Point described a federal court case holding that explicit reliance on a consultant's investigation waived fact work product protection related to the investigation — but not opinion work product protection.

About two weeks later, in University of Texas System v. Franklin Center for Government & Public Integrity, the Texas Supreme Court issued a very favorable investigation-related decision, finding that Kroll investigators were protected as a "lawyer's representative" because they acted under the direction of UT's General Counsel; Kroll's investigation into allegations of undue influence in the University's admissions process deserved privilege protection, as shown by affidavits "prepared after the fact, as are most affidavits prepared in the litigation context." No. 21-0534, 2023 Tex. LEXIS 627, at *25-26 (Tex. June 30, 2023). The Court then found that the publication of Kroll's report did not waive privilege as to "all the privilege-log