On October 3, 2025, the United States Court of Appeals for the Sixth Circuit upheld the application of the attorney-client privilege and work product doctrine to internal investigations. The Sixth Circuit’s decision to grant a writ of mandamus In re: FirstEnergy Corp., No. 24-3654 (6th Cir. Oct. 3, 2025) reversed the district court’s order compelling production of documents related to internal investigations commenced by FirstEnergy Corporation.

The case arose from two internal investigations FirstEnergy undertook after federal charges were brought against a (now-former) Ohio elected official that implicated FirstEnergy as part of a bribery scheme, along with a subsequent class action lawsuit against FirstEnergy by its stockholders. As part of the class action lawsuit, stockholders sought complete access to the “fruits of” the investigations, including those FirstEnergy withheld on attorney-client privilege and work-product protection grounds.

The district court ordered the production of “all previously withheld documents related to” both investigations. In response, FirstEnergy filed a petition for a writ of mandamus to overturn the order. The Sixth Circuit reversed the district court decision, concluding that the documents were protected.

Key Findings

Attorney-client privilege covered FirstEnergy’s internal investigation.

The Court found that FirstEnergy’s actions met the Upjohn legal framework, which sets forth the circumstances in which a company’s communications with counsel may be privileged. FirstEnergy and its board hired lawyers to secure legal advice through internal investigations and received such legal advice, as evidenced by numerous meetings, updates, and investigative work done by outside counsel.

The work-product doctrine covered FirstEnergy’s internal investigation.

The work-product doctrine applies when documents are created by the company or counsel because of a party’s reasonable anticipation of litigation, as opposed to its ordinary business purposes. The Court held that FirstEnergy’s material met this standard because the “but for” cause of the internal investigations was FirstEnergy’s anticipation of legal and regulatory action.

FirstEnergy met the high standard required for mandamus relief.

The Court stated that the district court erring in requiring production did not justify a writ of mandamus by itself. Instead, the court granted the writ because it concluded that FirstEnergy met the required three-pronged test for this form of extraordinary relief: First, FirstEnergy had no alternative means to obtain relief. Second, FirstEnergy had a clear and indisputable right to relief. Third, the circumstances were appropriate for a writ of mandamus. FirstEnergy had an expectation that the conversations and documents that were part of the investigations would be protected. In addition, if it were compelled to release these materials, it would likely have to do the same in other cases. Importantly, the Court also acknowledged that corporations more broadly might be forced to produce documents related to internal investigations, which would lead to general uncertainty.

Key Takeaways

Making business decisions based on legal advice does not obviate privilege.

The Court emphasized that FirstEnergy primarily sought and received legal advice throughout the investigations. The fact that it made business decisions based on the legal advice did not change the primary reasons for the investigations. Additionally, the Court looked to the numerous avenues of potential litigation that FirstEnergy was facing when commencing the investigations as evidence that the work product at issue was created in anticipation of litigation.

Sharing part of an internal investigation to an independent organization does not automatically waive attorney-client privilege or work-product protection.

The Court first emphasized that parties do not waive attorney-client privilege by disclosing non-privileged material to third parties – and in any event, FirstEnergy did not share any documents with external parties that were designated as attorney-client privileged. To the extent any information was shared with third parties like FirstEnergy’s auditor, only bare conclusions of the investigation were shared, and not any legal advice.

The Court further held that work-product protection is only waived by disclosure to an adversary. Because none of the disclosures at issue were to adversaries, no waiver occurred.

Both attorney-client privilege and work-product protection were robustly upheld.

The Court repeatedly emphasized the importance of both privileges and the negative consequences that would arise were these privileges to be weakened.

Conclusion

The FirstEnergy decision reaffirmed strong protections for documents generated in internal investigations. Companies should nonetheless be mindful that internal investigations must be conducted in anticipation of litigation or regulatory action in order to remain privileged. Accordingly, Companies should ensure that any anticipated litigation or regulatory exposure is clearly documented as part of the rationale for initiating an internal investigation.