Whether a defense attorney in an internal investigation represents an employer or an employee, it is imperative that the attorney is prepared for the issues that arise when collecting data from a personal smartphone. The authors outline the nearly infinite universe of potentially collectible data that exists within smartphones. Also, they provide an overview of the rights and interests of the employer and employee. Finally, the authors provide a cautionary note about the scope of internal investigations in which a private company becomes a de facto arm of the government.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent-Appellant Facebook.

Argument: This Court should grant direct appellate review in this case because the public interest in preserving work product protection and attorney-client privilege is of such importance that justice requires a final determination by this Court. In compelling Facebook to produce information generated in the course of an attorney-led investigation, the Superior Court failed to properly apply the work product and attorney-client privilege protections that attached to those materials. The work product doctrine protects from disclosure information generated in the course of an attorney-led investigation that is conducted “because of” anticipated litigation, and an attorney’s sorting of information during a privileged investigation cannot be discoverable by his adversary. And the attorney-client privilege protects confidential communications between lawyers and their clients even if the client publicly discloses the existence of an attorney-led investigation. In rejecting these principles, the Superior Court created dangerous uncertainty in the attorney-client relationship.

Many things are uncertain at the beginning of an internal investigation, and a company should ensure that the investigation and its conclusions will be protected by the attorney-client privilege, at least until the company makes a considered decision to waive the privilege. Anne Chapman and Kathleen Brody discuss some of the considerations touching the attorney-client privilege in internal investigations. Taking lessons from recent high-profile litigation, they provide tips for best practices.