Redgrave LLP Files Amicus Brief on Behalf of Lawyers for Civil Justice Calling on Sixth Circuit to Reverse FirstEnergy Ruling

On August 5, 2024, Redgrave LLP filed an amicus brief in the United States Court of Appeals for the Sixth Circuit on behalf of Lawyers for Civil Justice (“LCJ”) concerning In re FirstEnergy Corporation.  The brief urges the Sixth Circuit to reverse an Ohio federal judge’s ruling in a FirstEnergy shareholder litigation matter that undermined the attorney-client privilege in an internal investigation.

The central issue of the amicus brief concerns the privilege test the district court applied in issuing a sweeping order that denied attorney-client privilege and work product protection to any communications or documents related to two internal investigations led by outside counsel.  The district court applied an exceedingly narrow test for privilege that would require a party prove the primary purpose of an internal investigation was purely legal, rather than also motivated by business considerations.

LCJ’s brief argues that the primary purpose test for attorney-client privilege should be rejected in this context because it is not practical in practice and undermines the goals of the Federal Rules and the attorney-client privilege.  Instead, the Sixth Circuit should apply the test adopted by the D.C. Circuit, under which communications and documents created in the context of an internal investigation conducted by counsel may be privileged where, as here, the investigation was motivated in significant part by a legal purpose.

LCJ is a national coalition of defense trial lawyer organizations, law firms, and corporations that promotes excellence and fairness in the civil justice system to secure the just, speedy, and inexpensive determination of civil cases.

LCJ is represented by Jonathan M. Redgrave, who drafted the brief along with Gareth Evans, Nick Snavely, Ted Hiser, and Will Farrior.

See below to read the full amicus brief.

To read a related Law360 article “39 Law Firms Call On 6th Circ. To Reverse FirstEnergy Ruling,” click here.