In October 2025, the Sixth Circuit issued a significant decision defining privilege protections in the context of internal corporate investigations. In In re FirstEnergy Corp., No. 24-3654, the court granted a writ of mandamus vacating a district court order that had compelled FirstEnergy to produce internal investigation materials, including materials generated by counsel. The opinion reaffirms the longstanding strengths of both the attorney-client privilege and the work-product doctrine, especially when corporations engage outside legal counsel in response to potential legal exposure.  

FirstEnergy Corp. became tangled in a high-profile bribery scandal, which triggered government subpoenas and regulatory and criminal investigations. Following the issuance of government subpoenas, FirstEnergy and its board of directors engaged outside counsel to conduct internal investigations into the allegations. Subsequently, and related to the fallout from that scandal, FirstEnergy faced securities fraud litigation in a federal district court in Ohio, during which plaintiffs sought discovery of materials created during the earlier internal investigations.  In that context, the district court ordered production of the materials, reasoning that they were not protected by attorney-client privilege or the work-product doctrine because the internal investigation was conducted for business purposes rather than legal advice, and FirstEnergy failed to follow protocol to protect privileged documents.  FirstEnergy sought appellate relief through an emergency motion to stay the order and a petition for a writ of mandamus – ultimately setting the stage for the Sixth Circuit’s decision.    

In its opinion, the Sixth Circuit emphasized that mandamus relief is “drastic and extraordinary” but warranted in this case due to the potential irreparable harm to FirstEnergy’s privileges and broader public interests.  In re FirstEnergy Corp., No. 24‑3654 at 9 (6th Cir. Oct. 3, 2025) (“Opinion”). The court rejected the district court’s focus on the business use of the investigative materials, stating “[w]hat matters under the attorney-client privilege is whether a company seeks legal advice, not what it later does with that advice.” Id. at 6 (internal quotes omitted). This reasoning reiterates that attorney-client privilege is not automatically relinquished if that legal advice is also used to inform business or governance decisions.

The opinion also clarified that disclosing the “ultimate findings” of an internal investigation does not waive the privilege of the legal analysis that underpins those conclusions. The court explained that the work-product doctrine protects documents prepared “because of” reasonably anticipated litigation, even if they serve multiple purposes. Opinion at 5 (internal quotes omitted). In this case, the court found that FirstEnergy’s internal investigation materials were prepared in response to “actual, not merely anticipated, legal and regulatory threats,” emphasizing that even the claimants acknowledged the investigations “obviously” would not have occurred absent the DOJ’s involvement.  Id.  The court declined to find waiver where FirstEnergy shared limited information with independent auditors and the DOJ, reaffirming that disclosures with auditors and regulators do not automatically waive protection.

The FirstEnergy decision should provide comfort for companies that conduct investigations in response to allegations of potential wrongdoing. It reaffirms that strong privilege protections remain intact, notwithstanding the use of information generated in an investigation for other purposes.  It also provides investigating counsel the ability to conduct legal analysis without the specter of later compelled disclosure in related civil litigation. By upholding these longstanding doctrines, the court reinforces the ability for companies and their counsel of choice to conduct robust investigations and address allegations of wrongdoing.