Interviews Conducted as Part of Internal Investigation Not Privileged or Entitled to Work Product Protection

On September 27, 2022, the First Department issued a decision in BDO USA, LLP v. Franz, 2022 NY Slip Op. 05265, holding that interviews conducted as part of an internal investigation were not privileged or entitled to attorney work product protection, explaining:

The motion court providently exercised its discretion in finding that the communications between defendants and counsel for plaintiff BDO were not protected by attorney-client privilege or the attorney work product doctrine, as the interviews that BDO’s counsel conducted with defendants before the commencement of this action do not constitute the type of communications generally protected against compelled disclosure. Under the circumstances presented here, BDO, the corporate client, could not have had a reasonable expectation that the interviews, which were purportedly conducted as part of an internal investigation into a former BDO executive, would be confidential, as defendants had already tendered their resignations at the time of the interviews. Moreover, the corporate employees who provided statements to BDO’s counsel are now defendants in this action, and the interviews were central to the facts underlying the complaint.

In addition, the questions posed by BDO’s counsel at the interviews are not protected as attorney work product because those questions are not uniquely the product of a lawyer’s learning and professional skills. As for BDO’s claim that the interviews were conducted by counsel in preparation for litigation, defendants have shown a substantial need for the videotapes in preparation of their case, as those tapes refer to the materials that defendants had turned over to BDO before their departure from the company. In addition, defendants have no ability to recreate the videotapes.

(Internal citations omitted).

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