Fighting for the Future of In-house Attorney-Client Privilege
To be able to conduct or oversee effective internal investigations, in-house counsel must be able to assure witnesses that their communications with investigators, documents evidencing those communications, and documents the investigators create, will be subject to the attorney-client and/or work product privileges. In-house counsel have expressed concern that if employees learn their comments are or may not be privileged, they will be reluctant to be candid in providing information to investigators, information that is often essential to maintaining effective compliance programs.
In an interview published in the ACC Docket on January 13, 2021, Verrill attorney Tom Bean discusses the amicus brief he filed on behalf of the Association of Corporate Counsel in Attorney General v. Facebook, a case pending before the Supreme Judicial Court of Massachusetts. The case arose after the Attorney General issued civil investigative demands to Facebook for documents created during Facebook’s attorney-led internal investigation of app developers. The Superior Court ordered Facebook to produce, over Facebook’s objections on the grounds of privilege, documents responsive to most of the Attorney General’s requests. Mr. Bean explains what motivated him to accept the case, to argue for preserving the privileges for internal investigations directed by in-house counsel, and the reasons he thinks the Court's decision in the case could have far-reaching consequences for in-house counsel in Massachusetts.