Sixth Circuit Reaffirms Privilege Protections During Internal Investigations

On October 3, 2025, the Sixth Circuit reaffirmed that the attorney-client privilege and the work-product doctrine protections apply to materials created during attorney-led internal investigations. In re FirstEnergy Corp., No. 24-3654 (6th Cir. Oct. 3, 2025).

Background:

FirstEnergy Corporation (“FirstEnergy”), an Ohio-based public utility company, conducted two internal investigations after the federal government unsealed a criminal complaint against former Ohio House Speaker Larry Householder in July 2020 and issued subpoenas to First Energy. The complaint described an alleged bribery scheme in which an unnamed company, widely understood to be FirstEnergy, contributed millions of dollars to Householder’s campaign in exchange for Householder’s support for legislation which would have provided FirstEnergy with a $1.3 billion bailout and a fixed revenue stream of $100 million annually. FirstEnergy’s stock price dropped 45% the day after the criminal complaint was unsealed and multiple state and federal regulators initiated investigations. Several civil lawsuits were also filed against the company and its directors and officers asserting securities and RICO claims.

In one of those suits, In re FirstEnergy Corp., claimants sought access to “all previously withheld documents” and other information related to both internal investigations.^[1] Following the recommendation of a special master, the District Court granted the claimants’ motion to produce material related to both investigations. In response, FirstEnergy filed a petition for mandamus relief in the Sixth Circuit. The Sixth Circuit granted the FirstEnergy’s petition for writ of mandamus – “a drastic and extraordinary remedy”^[2] – and vacated the District Court’s production order, which underscores the importance the Circuit Court placed on maintaining privilege protections for materials created during internal investigations.

Analysis: 

Attorney-Client Privilege

The Sixth Circuit found that FirstEnergy clearly sought legal advice – the basis for asserting the attorney-client privilege – when it hired counsel to conduct internal investigations. It then held that communications between FirstEnergy and its counsel—including counsels’ analyses about what acts occurred, whether those acts were illegal, and what criminal and civil consequences might ensue—were all protected by attorney-client privilege.

The court rejected the notion that using information from an internal investigation to make business decisions undercuts a claim that the information was covered by the attorney-client privilege. The test for determining if information is protected by the attorney-client privilege is whether the company was seeking legal advice in obtaining the information, not what the company will do or does with that advice. The Sixth Circuit recognized that it’s rare for a company not to have a business purpose when it seeks legal advice, and that “adjacent business purposes” for seeking legal advice do not “transform[] the communications and legal work into something other than legal advice.”^[3] 

Work-Product Doctrine

Similarly, the Sixth Circuit upheld the company’s efforts to invoke the work-product doctrine and protect from discovery materials prepared in anticipation of litigation.^[4] The doctrine applies to an attorney’s mental impressions, opinions, conclusions, and legal theories.^[5]

The court acknowledged that the work-product doctrine is an “intensely practical”^[6] doctrine that requires attention to “the circumstances surrounding the documents’ creation.”^[7] However, after the criminal complaint was unsealed against Householder, subpoenas were issued to FirstEnergy, and its stock price fell precipitously, the court found that the company reasonably “anticipated” that it would confront a “tsunami of litigation” as it, in fact, did. As such, the Sixth Circuit found that both of FirstEnergy’s internal investigations created materials that were protected by the work-product doctrine because they “did not simply recite facts” but “determined what happened, whether it was lawful, and what civil and criminal liability could result.”^[8]

Finally, the Sixth Circuit found that FirstEnergy had not waived the privilege protections by disclosing non-privileged information to the government, litigants, or its independent auditor. With respect to the government and litigants, the court found that information FirstEnergy had disclosed was not privileged because it involved “conclusions from the investigation, not the ‘substance of the attorney’s advice.’”^[9] The court also found that FirstEnergy had not waived the protections despite disclosing thousands of documents from the internal investigations to an external auditor, in part because the auditor’s records confirmed that FirstEnergy had asserted the attorney-client privilege and work-product doctrine and refused to disclose other, protected, documents that were responsive to the auditor’s inquiry. Additionally, the court reaffirmed the proposition that disclosing information to independent auditors generally does not waive the work-product protection, because parties waive the work-product protection by voluntarily disclosing protected information to an adversary,^[10] and independent auditors generally are not considered adversarial to their clients.^[11]

Takeaways: 

• Protecting Predictable and Certain Privilege Standards: The Sixth Circuit recognized that it could not affirm the District Court’s ruling without abandoning almost half a century of jurisprudence regarding the scope of attorney-client privilege and the work-product doctrine, and without discouraging “full and frank communication” between clients and their attorneys when conducting investigations into potential wrongdoing. In its opinion, the court emphasized that “predictable and certain” privilege and work-product standards are “essential for FirstEnergy and future litigants facing perilous litigation consequences.”
• Legal Advice Contains Facts: While the Sixth Circuit recognized that “there is no such thing as legal advice without facts,” to ensure that investigation materials are protected through attorney-client privilege, investigating lawyers should make sure that they are using factual information obtained in an investigation to determine whether the actions were lawful, and whether there are civil or criminal liabilities that could result. Because clients cannot conceal materials by simply revealing or disclosing the material to the lawyer, material obtained in an investigation must actually be used to provide legal analyses and assessments by the investigating firm.  
• Careful Disclosures Avoid Waiving Protections: Through careful disclosures, FirstEnergy was able to avoid waiving the attorney-client privilege and work-product doctrine over aspects of its internal investigation despite sharing some information learned during its investigation to the government, litigants, and its independent auditors. Specifically, the Sixth Circuit noted that FirstEnergy did not waive the attorney-client privilege despite sharing thousands of documents from its internal investigations with auditors because it had asserted the privilege over and refused to disclose other documents.