Sixth Circuit Decision Protects Counsel-Derived Investigations from Discovery

On October 3, 2025, the United States Court of Appeals for the Sixth Circuit affirmed that the fruits of internal company investigations conducted by counsel are protected by both the attorney-client privilege and the work product doctrine. In re FirstEnergy Corp., No. 24-3654.

In 2016, the federal government launched an investigation into FirstEnergy, an Ohio-based public utility company, in connection with an alleged bribery scheme involving later-convicted State Representative Larry Householder. As a response, FirstEnergy and its board retained separate outside counsel to perform internal investigations. Two securities class actions against FirstEnergy followed, and the claimants requested access to all withheld documents from the two separate investigations. The District Court for the Southern District of Ohio found that privilege did not apply and granted access. FirstEnergy petitioned the Sixth Circuit for a Writ of Mandamus and a stay of the District Court’s order. The Sixth Circuit overruled the District Court’s Order on the following grounds:

1. Attorney-client privilege applied because “what was true for” Upjohn Co. v. United States, was also true for FirstEnergy. I.e., the internal investigation was initiated by legal counsel for the purpose of providing legal advice.
2. The work product doctrine applied in First Energy’s case because both the company and its board retained outside counsel in anticipation of legal risk, which later became the actual risk of liability resulting from the government’s potential investigations. The Court highlighted that “but for” the federal government’s investigation into FirstEnergy, the company and its board would not have retained counsel for the internal investigations. It was therefore evident that the driving force behind the internal investigations was in anticipation of litigation.

Takeaways for In-House Counsel:

To avail itself of privilege, it is imperative to clearly establish that counsel is being engaged for legal advice, because, as the Court highlighted, what matters most under attorney-client privilege is that a company seeks legal advice. Therefore, in-house teams should avoid ambiguity surrounding the role of outside counsel to maintain attorney-client privilege, even if the information obtained from that engagement informs other (non-legal) decisions within the company.

Equally as important is to clearly state in engagement communications with outside counsel that their services are being sought as a response to anticipated legal risk and/or potential litigation, including labeling documents with “attorney work product.”