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To Disclose or Not to Disclose

By Jonathan S. Feld, Jenny Louise Johnson, and BeLinda I. Mathie
August 17, 2003

Recent corporate accounting scandals have brought to light disturbing revelations concerning the business practices of many American companies. New ' and more severe ' penalties for corporate fraud in the Sarbanes-Oxley Act of 2002 have caused companies to step up their internal efforts to detect and prevent wrongdoing.

Companies discovering possible unlawful activity frequently hire outside counsel to perform an internal investigation. The attorneys and their agents, such as accountants, interview key personnel and review business records. Investigators typically generate interview memoranda, chronologies, legal analyses, and summary reports. These investigative documents are shielded from disclosure to third parties by the attorney-client privilege and work product doctrines. See e.g., Better Government Bureau v. McGraw, 106 F.3d 582 (4th Cir. 1997). But see In re Grand Jury Subpoena Dated May 9, 2001, 179 F. Supp. 2d 270 (S.D.N.Y. 2001) (business advice and lobbying not protected).

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