Devastating Blow: Why Your Internal Investigation Notes May Now Be Handed to Prosecutors

The Erosion of Work-Product Protection in Internal Investigations

In my 25 years as a federal prosecutor, I witnessed firsthand how the government’s appetite for internal corporate documents has grown insatiable. Today, I must warn you that the traditional bulwark protecting your internal investigation notes—the work-product doctrine codified in Federal Rule of Civil Procedure 26(b)(3)—is under sustained assault. The Department of Justice now routinely argues that notes created during internal investigations are not primarily prepared in anticipation of litigation but rather as part of ordinary business operations. This distinction is critical because the work-product doctrine only shields documents prepared because of the prospect of litigation, not those created for regulatory compliance or risk management. Prosecutors are leveraging this gap by issuing grand jury subpoenas under Federal Rule of Criminal Procedure 17(c) that demand all notes, memoranda, and electronic communications from your internal investigative team. Once those notes land in government hands, they provide a roadmap for criminal charges, revealing every witness inconsistency, every credibility assessment, and every strategic decision your team made.

How the Attorney-Client Privilege Fails to Protect Dual-Purpose Notes

The attorney-client privilege, governed by federal common law and recognized in every circuit, protects confidential communications between attorney and client made for the purpose of obtaining legal advice. However, the privilege does not apply when the communication serves a dual purpose—combining legal advice with business, regulatory, or investigative functions. In the landmark case United States v. Richey, the Ninth Circuit held that the privilege does not apply when the primary purpose of the communication is not legal advice but rather factual investigation or business decision-making. The Department of Justice has seized on this reasoning, arguing that internal investigation notes often document witness interviews, document reviews, and factual findings that could have been conducted by non-lawyers. I have seen prosecutors successfully compel production of these notes by arguing that the company’s internal investigation was not solely for legal advice but also to satisfy regulatory obligations under the Sarbanes-Oxley Act or to inform business decisions about employee discipline. The result is devastating: your candid assessments of witness credibility, your preliminary theories of the case, and your identification of potential weaknesses are now laid bare before a grand jury.

The Yates Memo and the Government’s Expectation of Full Disclosure

The 2015 Yates Memo, formally titled “Individual Accountability for Corporate Wrongdoing,” fundamentally altered the landscape of corporate criminal liability by requiring companies to disclose all relevant facts about individual employees to qualify for cooperation credit. This policy, codified in the Justice Manual Section 9-28.700, explicitly states that a company must provide “all facts relating to the individuals responsible for the misconduct” to receive any reduction in charges or penalties. In practice, this means that your internal investigation notes—including the factual findings, witness statements, and document summaries—are exactly what prosecutors demand as evidence of cooperation. The government now expects that you will voluntarily waive privilege over your investigation notes, and if you refuse, prosecutors can use that refusal as a basis for declining to offer a deferred prosecution agreement or for seeking an indictment against the company itself. I have seen this dynamic play out in multiple federal districts, where companies that attempted to protect their notes under privilege were labeled as uncooperative and faced significantly harsher outcomes. The reality is stark: the very notes you create to defend yourself are now the primary weapon the government uses against you.

Practical Strategies to Protect Your Investigation Notes From Disclosure

Given the current legal environment, you must fundamentally restructure how you conduct internal investigations if you wish to preserve any privilege over your notes. First, ensure that every internal investigation is directed by outside counsel with a clear written engagement letter stating that the investigation is for the purpose of providing legal advice in anticipation of litigation. Second, segregate factual findings from legal analysis—create separate documents for witness interview summaries that contain purely factual recitations and reserve privileged documents for legal strategy, privilege assessments, and advice to the client. Third, avoid creating any document that contains both factual investigation and business recommendations, as this dual-purpose nature will almost certainly result in compelled disclosure under the reasoning of Richey and its progeny. Fourth, implement a strict document retention policy that limits the creation of notes to those absolutely necessary, and consider using attorney work-product labels on every privileged document. Finally, train all employees involved in investigations that their casual emails, text messages, and instant messages about the investigation are presumptively discoverable and should be treated with the same caution as formal memoranda.

Frequently Asked Questions

If your company is conducting or considering an internal investigation, do not wait until the government comes knocking with a subpoena. The decisions you make today about how to document your findings will determine whether those notes remain protected or become the cornerstone of a federal indictment. Contact our office immediately for a confidential consultation. With over 25 years of experience on both sides of federal criminal prosecutions, I can help you design an investigation protocol that maximizes privilege protection while satisfying your regulatory and cooperation obligations. Your notes should work for you, not against you—let us help you keep them that way.