Recently, the Sixth Circuit said it would not reconsider its October 2025 ruling that affirmed the rule that the fruits of counsel’s investigations are protected under privilege, holding “there is no way to affirm the district court’s ruling [compelling production of withheld documents] without abandoning nearly a half century of jurisprudence concerning the scope of the attorney-client privilege and work-product doctrine.” In re FirstEnergy Corp., No. 24-3654 (quotation and citation omitted). The production at issue stemmed from internal investigations at FirstEnergy prompted by “an assortment of legal and regulatory actions” spun off from the high-profile corruption prosecution and conviction of former Ohio House Speaker Larry Householder. (For disclosure: Squire Patton Boggs (US) LLP conducted an internal investigation on behalf of the board of directors.)  For background, the Ohio General Assembly passed legislation in 2016 designed to bail out energy giant FirstEnergy from “dire financial straits.” United States v. Householder, 137 F.4th 454 (6th Cir. 2025). Speaker Householder accepted a hefty campaign bribe to see the legislation through—and the Sixth Circuit  affirmed his conviction earlier this year. Id.

Those episodes triggered investigations into FirstEnergy by the SEC, Ohio Attorney General, and Ohio Public Utilities Commission.   Shareholders initiated securities class actions of their own.  FirstEnergy, meanwhile, took internal action:  Its “board hired Squire Patton Boggs LLP to investigate the allegations in the Householder complaint. And FirstEnergy hired [other counsel] to investigate the allegations and to advise the company about how to handle the subpoenas.”  The securities-fraud class called for those investigation reports in discovery.  The district court accepted the special master’s recommendation to grant plaintiffs’ demand.

That discovery order gave rise to a mandamus petition and, important to all corporations, the Sixth Circuit’s reaffirmation of a robust attorney-client and work-product privilege over internal investigations conducted by counsel.  FirstEnergy (backed by “over forty amici”) asserted that attorney-client privilege and work-product protection excludes internal investigations from disclosure.  The Sixth Circuit agreed, finding compelled discovery was not just wrong, but also reflected legal “errors sufficiently exceptional to warrant mandamus relief.” In re FirstEnergy Corp., No. 24-3654.

Attorney-client privilege ensures the confidentiality of communications pertaining to legal advice.  Upjohn (1981) is the leading precedent.  Upjohn Co. v. United States, 449 U.S. 383 (1981). And “[a]s with Upjohn, FirstEnergy and its board hired lawyers to ‘secure legal advice’ through internal investigations” – enough to attach privilege.  (For instance, Squire provided “investigative findings, legal analyses, and assessments of potential criminal and civil liability.”)  The work-product doctrine, codified by Civil Rule 26(b), doubly protected the internal reports FirstEnergy had “prepared in anticipation of litigation.”  The court minded the “realities of litigation.”  And it dismissed as fiction hairsplitting between “business decisions” and legal advice – legal advice informing business decisions.  

Legal error on its own, however, does not sustain the “drastic and extraordinary remedy” of mandamus.  A writ of mandamus issues not against the parties but against the lower court judge, ordering the judicial officer to take action consistent with settled law (in this case, revoke the flawed discovery order).  Courts moderate that dramatic relief by insisting the remedy is a last resort, backed by a clear right, and overall appropriate.

The first requirement—no other adequate relief—poses a high hurdle.  But FirstEnergy cleared it:  First, appeal in the ordinary course after final judgment, and so after disclosure, is not relief at all with “no way to unring those disclosure bells.”  Beyond that, the district court spurned FirstEnergy’s try for interlocutory review (28 USC §1292(b)); defiance followed by contempt findings did not guarantee review because civil contempt is not immediately appealable; and the Mohawk decision forecloses collateral-order-doctrine review, expressly favoring mandamus in attorney-client-privilege cases.  Note that an interlocutory appeal attempt likely is a precondition for mandamus relief in this setting.  On the remaining factors, the “district court made substantial departures from bedrock privilege and work-product principles,” and those departures upset the “predictable and certain” standards “essential for FirstEnergy and future litigants facing perilous litigation consequences.”

The Sixth Circuit’s mandamus holding marks a notable recommitment to “the oldest of the privileges for confidential communications known to the common law.”  Work-product protections provide an indispensable supplement.  This case demonstrates why.  Internal investigations are an essential pillar for companies like FirstEnergy to withstand a “tsunami of litigation” and regulatory action.  Thorough investigations require “full and frank” attorney-client communication, which requires trust and privacy.  The Sixth Circuit strongly signaled that businesses can be confident in confidentiality.

Companies and in-house counsel should consider the following key practices to strengthen attorney-client privilege and work-product protections during internal investigations:

  • Establish a Legal-Driven Investigation: Document the investigation is undertaken to obtain legal advice, and if applicable, in anticipation of litigation. Have counsel direct all investigative decisions, workstreams, and communications. Limit participants to those necessary for the legal purpose and issue privilege notices and litigation holds early and consistently.
  • Maintain Confidentiality: Restrict investigation communications to privileged personnel only. Segregate privileged materials and use careful labelling (e.g., “Attorney-Client Privileged” and “Attorney Work-Product”). Conduct interview privately, avoid recordings, include counsel’s mental impressions, and control distribution of any written reports.
  • Document Processes Demonstrating Privilege: Memorialize that materials were prepared because of anticipated litigation or to enable counsel to provide legal advice. Use proper engagement letters for outside agents though counsel and keep a defensible chain of custody for all materials. Manage interactions with auditors and regulators carefully to avoid waiver.