Overview
In an opinion today, Judge Furman upheld GM’s decision to withhold, on privilege and work product grounds, interview notes underlying a publicly-released report prepared by GM's attorneys at Jenner & Block regarding GM's recall of around 800,000 vehicles that may have had defective ignition switches. The plaintiffs argued (among other things) that the interviews were not done for the “primary purpose” of providing legal advice, but were instead conducted “to identify and correct the problems that resulted in the delayed recalls and to address a public relations fiasco by reassuring investors and the public that it takes safety seriously.” Judge Furman disagreed:
The primary purpose test, however, does not require a showing that obtaining or providing legal advice was the sole purpose of an internal investigation or that the communications at issue “would not have been made ‘but for’ the fact that legal advice was sought.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 759 (D.C. Cir. 2014). Instead, as the D.C. Circuit has expressly held, “the primary purpose test, sensibly and properly applied, cannot and does not draw a rigid distinction between a legal purpose on the one hand and a business purpose on the other.” Id. at 759. “So long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation . . . .” Id. at 758-59. . . . . Rare is the case that a troubled corporation will initiate an internal investigation solely for legal, rather than business, purposes; indeed, the very prospect of legal action against a company necessarily implicates larger concerns about the company’s internal procedures and controls, not to mention its bottom line. Accordingly, an attorney-client privilege that fails to account for the multiple and often-overlapping purposes of internal investigations would “threaten[] to limit the valuable efforts of corporate counsel to ensure their client’s compliance with the law.” Upjohn, 449 U.S. at 393. Applying those standards here, the Court finds that New GM has met its burden of demonstrating that the provision of legal advice was a “primary purpose” of Jenner’s investigation and the communications reflected in the Interview Materials. In the face of an already-launched criminal investigation by the DOJ, and the inevitability of civil litigation, New GM “retained Jenner to represent New GM’s interests and to provide legal advice to new GM in a variety of matters relating to the recalls,” including the DOJ investigation. (Valukas Decl. ¶ 2). “[I]n order to facilitate [that] provision of legal advice,” Jenner . . . conducted the interviews in question. (Id. ¶ 3).
