Barry Pollack commented on discovery of law firm work product from corporate internal investigations following the recent release of Yates memorandum by the Department of Justice (DOJ). According to Pollack, if the DOJ makes good on its new policy to prosecute individuals for corporate misconduct, courts facing requests for access to a law firm's internal investigation of the alleged misconduct may find guidance in the current dispute between Gibson Dunn and defendants facing charges over the closure of access lanes to the George Washington Bridge in September 2013. The defendants have requested the release of information tied to Gibson Dunn's summary report. The law firm argues that interview notes and metadata from the interview summaries either do not exist or are irrelevant to the investigation. The court has not ruled on the motion.
"Criminal defendants may start routinely requesting raw notes or metadata relating to corporate internal investigations, just as the defendants in the [George Washington Bridge] case have sought them from Gibson Dunn," Pollack said. "What may become more difficult for companies in the wake of the Yates memorandum is deciding if and when to disclose the results of these investigations to the government. Law firms conducting investigations will not only have to calibrate their advice to their corporate clients about what to disclose, they will also need to conduct the investigations in such a way that if disclosures are to be made, the law firm will not also have to disclose the confidential legal advice it gave to the company."