U.S. Department of Justice building in Washington, D.C.
Cooperating with the U.S. government during an investigation of potential wrongdoing by your company is supposed to yield tremendous benefits in the form of cooperation credit that theoretically translates into a more favorable outcome. The U.S. Department of Justice’s guidance, for example, says that companies can receive “consideration for cooperation” if they “identify all individuals substantially involved in or responsible for the misconduct at issue…and provide to the Department all relevant facts relating to that misconduct.” Such cooperation credit could significantly reduce fines or penalties or even result in a declination.
Most companies, however, ferret out wrongdoing through investigations conducted by counsel, which involve communications made under the protection of the attorney-client privilege. The resulting analysis of evidence contains attorney mental impressions, as well as advice regarding potential risks, exposure and future litigation. In other words, relevant information discovered in an internal investigation often is protected by either the attorney-client or work product privileges.
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