Reports supporting both litigation defense and operational remediation face uncertain protection. Courts apply primary purpose or because-of tests, with results varying by circuit and by how the organization used the report.
Bifurcated investigation structures address the problem.
Alternative Names:
Dual Purpose Investigation|Mixed-Purpose Report
Why it Matters?
Bifurcating the investigation into a business remediation track and a separate counsel-directed litigation track is the structure that preserves protection for at least the litigation work product, though it costs more than a single investigation. Organizations conducting one investigation serving both purposes should expect production. Deciding the structure during the incident, when speed is the priority, is what makes advance planning valuable.
Frequently Confused with
Related terms
Frequently asked questions
What structure preserves protection?
Why does advance planning matter?
