Sarah M. Hall, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, authored an article in the American Bar Association's Month-in-Brief, titled “Sixth Circuit Says It Again: Outside Counsel’s Internal Investigations Are Privileged and Protected from Disclosure.”
Following is an excerpt:
In summer 2025, the U.S. Court of Appeals for the Sixth Circuit issued a strongly worded decision in In re FirstEnergy Corporation (No. 24-3654)—confirming the core concept that internal investigations conducted by counsel and in anticipation of litigation are privileged and protected from disclosure. When securities plaintiffs in the case sweepingly sought all documents “related to the internal investigation,” the district court ordered their production. After much legal wrangling, the Sixth Circuit rebuked the district court on August 7, 2025, and reaffirmed in a per curiam opinion filed October 3, 2025.
The Sixth Circuit restated what corporate America’s legal departments can and should rely upon: that internal investigations led by legal counsel are and will remain privileged. This opinion affirms the intent of the privilege: to allow companies to receive privileged legal advice in the course of internal investigations, uncover potential risk areas, and take remedial action—without worrying that the investigation will become public at some later point.
The relevant background of this case is as follows. Following the federal indictment of the former speaker of the Ohio House of Representatives, Larry Householder, and related Department of Justice investigations into FirstEnergy, an Ohio public utilities company, shareholders brought a securities class action seeking documents regarding the company’s internal investigations. The district court ordered the company to produce the documents, and the company moved to stay that order pending resolution of its petition for a writ of mandamus. The Sixth Circuit granted the stay on August 7, 2025, concluding that the company was likely to succeed on its arguments since the lower court incorrectly applied the attorney-client privilege and work-product doctrines—and that it faced irreparable harm. …
