On December 5, 2017, a Magistrate Judge in the United States District Court for the Southern District of Florida held in SEC v. Herrera that the “oral download” of external counsel’s interview notes to the Securities and Exchange Commission waived protection from disclosure under the attorney work product doctrine. As a result of the decision, issued in an SEC enforcement action, counsel was ordered to disclose to certain former employees of its client those interview notes that were orally downloaded to the SEC. Herrera highlights issues that internal and external lawyers should carefully consider when conducting internal investigations and particularly when providing downloads to the government of material that may be privileged or subject to work product protection.
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