Sixth Circuit rejects challenge to 50 years of privilege case law

Lawyers from Norton Rose Fulbright were signatories to the successful amicus brief that helped shape the Sixth Circuit’s reasoning in a recent landmark decision preserving the attorney-client and work-product privilege in internal investigations. On October 3, 2025, the Sixth Circuit reaffirmed the decades-long standards for applying the attorney-client privilege and work-product protection within the context of internal investigations. In In re FirstEnergy Corporation, No. 24-3654 (6th Cir. Oct. 3, 2025), the Sixth Circuit rejected novel privilege standards used by the district court, helping to avoid introducing substantial uncertainty regarding a company’s decision to initiate an internal investigation. 

The litigation arose in response to the Department of Justice (DOJ) unsealing a criminal complaint against a state lawmaker for an alleged bribery scheme that implicated FirstEnergy Corp. (FirstEnergy). Shortly after, FirstEnergy and an independent committee of its board retained separate outside counsel to conduct internal investigations related to the DOJ matter. Shareholders filed securities fraud class actions in response to the alleged bribery scheme and sought “complete access to the fruits of the [two] investigation[s].” In re FirstEnergy Corp., No. 24-3654, slip op. at 3 (6th Cir. Oct. 3, 2025). The district court held that the investigative materials were not protected by privilege or work product, and ordered production on the basis that the company initiated the investigation for business, rather than legal, advice. The Sixth Circuit granted FirstEnergy’s petition for a writ of mandamus and vacated that order.

The Sixth Circuit’s decision preserves privilege within internal investigations in two important contexts.

First, FirstEnergy makes clear that the application of the attorney-client privilege to documents and communications created in the course of an internal investigation turns on whether they were intended to further the provision of legal advice—not on a company’s later business use of that advice. The district court had “reasoned that FirstEnergy initiated the investigations for business advice, not legal advice,” because the company “later used the fruits of the investigations for business decisions.” Id. at 6. The Sixth Circuit rejected this analysis, recognizing that “[n]one of these adjacent business purposes for seeking legal advice transforms the communications and legal work into something other than legal advice.” Id. A standard that hinges on a company’s subsequent business use of legal advice would jeopardize the ability to claim privilege over internal investigations.

Second, FirstEnergy clearly establishes that work-product protection extends to materials prepared in anticipation of litigation even when the internal investigation was also driven by related employment decisions and business concerns. Id. at 7. In the aftermath of the DOJ’s criminal complaint, FirstEnergy faced numerous civil lawsuits and multiple federal and state regulatory actions. The FirstEnergy plaintiffs themselves acknowledged that the company would not have launched the internal investigations “but for” the legal proceedings. On that basis, the Sixth Circuit concluded that “[t]he work-product doctrine plainly applies to the civil and criminal litigation crisis FirstEnergy faced.” Id.

The Sixth Circuit also rejected two waiver arguments concerning circumstances that are common to internal investigations. The Sixth Circuit ruled that the company had not waived privilege by disclosing portions of the internal investigation to the DOJ in connection with a deferred prosecution agreement, as most of the information consisted of non-privileged facts or “bare conclusions,” which did not expose the substance of the legal advice. Id. at 13. Nor did the company waive privilege by disclosing portions of the internal investigation to its independent auditor because “[o]nly disclosures to an adversary will waive work-product protection,” which the Sixth Circuit acknowledged would not include an independent auditor with ethical obligations to maintain client confidentiality. Id. at 14.

Ultimately, the Sixth Circuit recognized that “there is no way to affirm the district court’s ruling without abandoning nearly a half century (since Upjohn) of jurisprudence concerning the scope of the attorney-client privilege and work-product doctrine or without discouraging full and frank communication between companies and their attorneys when investigating their own wrongdoing.” Id. at 11 (cleaned up).

Corporations routinely operate with intertwined business and legal motivations, but this decision confirms that documents and communications intended to further legal advice remain protected—even if they are later used for business purposes. The Sixth Circuit’s ruling reinforces the foundational protections of Upjohn and ensures that companies can conduct internal investigations with confidence that their legal communications and litigation-preparation materials will be protected. It will remain important for counsel involved in internal investigations to document contemporaneously that their communications and work are for the purpose of legal advice.

Authors Sandeep Savla and Kevin J. Harnisch were signatory to Brief for 39 Law Firms as Amici Curiae Supporting Petitioner, In re FirstEnergy Corp., No. 24-3654 (6th Cir. Aug. 5, 2024).