The U.S. Court of Appeals for the Sixth Circuit recently issued a decision reaffirming key elements of attorney-client privilege and work-product protections, particularly in the context of corporate internal investigations. On August 7, 2025, the Sixth Circuit granted a stay of a district court order that compelled FirstEnergy Corporation (FirstEnergy) to produce documents created during an internal investigation of an alleged government bribery scheme. In re FirstEnergy Corporation, No. 24-3654, 2025 WL 2335978 (6th Cir. 2025). The Sixth Circuit’s decision strongly condemned the district court’s decision compelling production of the documents, explaining that the internal investigations—which were conducted in response to government investigations and lawsuits—were clearly in anticipation of litigation, and so were protected from disclosure. The decision provides a welcome reaffirmation that corporations may claim privilege over such internal investigations.
Background and District Court Decision
In 2020, FirstEnergy was implicated in a bribery scheme related to the passage of an Ohio House Bill. The resulting rush of legal and regulatory action led to FirstEnergy retaining two law firms to conduct separate internal investigations into the allegations.
Later that same year, two securities litigations against FirstEnergy were filed in the U.S. District Court for the Southern District of Ohio. The plaintiffs moved to compel documents related to FirstEnergy’s internal investigations. The District Court assigned a Special Master to rule on that motion, who decided that neither the attorney-client privilege nor the work-product doctrine applied to protect the disputed materials from discovery. The District Court agreed with the Special Master and overruled FirstEnergy’s objections to the Special Master’s order.
With regard to attorney-client privilege, the District Court considered whether the predominant purpose of a communication was for legal advice; if it was, the communication would be privileged and protected from disclosure, and if it was not, it could be subject to discovery. The District Court concluded that the internal investigations were conducted pursuant to SEC requirements and for human resources purposes and, accordingly, that the documents were prepared in the ordinary course of business. The District Court rejected FirstEnergy’s argument that “ordinary course of business” analysis is relevant only to the work-product doctrine. The District Court added that it is not sufficient to rely on the existence of lawsuits to show that attorney-client privilege applies since “parties invoking the privilege have an obligation to identify with particularity the privileged documents and why these documents are privileged.”
Regarding the work-product doctrine, the standard applied by the District Court was whether “the materials sought were made ‘because of’ litigation or if they ‘would have been prepared in substantially the same manner’ regardless of litigation.” The plaintiffs argued that FirstEnergy conducted its internal investigations to satisfy its independent auditor, to determine which executives to terminate, and to reach a deal with the government. The District Court agreed, holding that because FirstEnergy did not provide specific, non-conclusory evidence to show that the materials sought were prepared for litigation, the work-product doctrine did not apply.
The District Court subsequently denied FirstEnergy’s motion for interlocutory review. Unable to appeal the decision on the motion to compel, FirstEnergy filed a petition for a writ of mandamus with the Sixth Circuit.[1] Thirty-nine law firms filed an amicus brief supporting the petition, arguing that communications related to a company’s internal investigations are protected by attorney-client privilege and the work-product doctrine. FirstEnergy also filed a motion to stay the District Court’s order compelling production of the disputed documents until FirstEnergy’s mandamus petition was resolved.
Sixth Circuit Decision
In a short and straightforward opinion, the Sixth Circuit granted FirstEnergy’s motion to stay. Courts typically consider four factors when deciding whether to grant such motions: (1) the movant’s likelihood of success on the merits; (2) irreparable harm to the movant; (3) substantial injury to others; and (4) the public interest—with an emphasis on the first two factors. The Sixth Circuit found in favor of FirstEnergy on all factors, concluding that FirstEnergy is likely to succeed on the merits because the District Court incorrectly interpreted the attorney-client privilege and the work-product doctrine.
In discussing attorney-client privilege, the Court looked to Upjohn Co. v. United States—which protects communications between a client and its counsel for the purpose of seeking legal advice—and concluded that the internal investigations at issue “resulted in precisely the kinds of communications that Upjohn contemplates.” That is, because the company sought legal advice via these investigations, the attorney-client privilege should apply. The Sixth Circuit explained that “[w]hat matters for attorney-client privilege is not what a company does with its legal advice, but simply whether a company seeks legal advice.”
With regard to the work-product doctrine, the Sixth Circuit noted that the doctrine covers documents created “because of” a “reasonable” anticipation of litigation, which likely covers the materials related to the internal investigations. The Sixth Circuit rejected the District Court’s position, which ignored the multiple subpoenas, lawsuits, and federal and state investigations. In the Sixth Circuit’s view, this wave of legal action was key to finding that FirstEnergy undertook the internal investigations because it reasonably anticipated litigation.
The Sixth Circuit has so far only granted the motion to stay, finding only that FirstEnergy is likely to succeed on appeal, and so its decision on the petition will indicate with more finality how the Sixth Circuit views the District Court’s opinion.
Takeaways
The Sixth Circuit’s decision reaffirms that the attorney-client privilege and work-product doctrine protections apply to internal investigations conducted in anticipation of litigation. Such investigations play a crucial role in a company’s ability to ensure ongoing regulatory and legal compliance, and the Sixth Circuit’s decision reinforces the important role that outside counsel can play in guiding and advising on those investigations.
[1] A writ of mandamus is an order from an appellate court to a district judge requiring the judge to fulfill his/her duties and follow the law. It is used only in “exceptional circumstances” and where the party seeking mandamus has no alternative remedies. Even then, appellate courts are not required to entertain petitions for writs of mandamus—it is entirely within their discretion whether they want to hear more or deny the petition without explanation.
