In a Law360 article reviewing important cases to keep an eye on in 2021, Ingrid S. Martin highlighted a pending appeal before the Massachusetts Supreme Judicial Court that could redefine the scope of the attorney-client and attorney work product privileges, particularly in the context of internal investigations.
The SJC is considering whether Massachusetts Attorney General Maura Healy can gain access to materials from the internal investigation that Facebook and its outside counsel performed regarding apps on Facebook’s platform that may have compromised user data.
Facebook uncovered and reviewed information regarding potential security and privacy issues in 2018 as part of an internal investigation following the Cambridge Analytica scandal involving the unauthorized acquisition of Facebook users' personal data. Facebook, which was acting on advice of legal counsel, argues that the data developed during the investigation is protected by the attorney-client and attorney work product privileges.
Similar internal company probes could be chilled if the SJC upholds a lower court decision compelling Facebook to turn over the information sought by the Attorney General’s civil investigative demand, Ms. Martin told Law360. As the lower court’s decision turned, in part, on Facebook’s public disclosure of the internal investigation, the SJC’s decision also may influence whether companies make public their decision to conduct such an internal review.
"It's certainly going to require some self-reflection by those of us who conduct internal investigations for companies as to how much of this information can be released publicly," Ms. Martin said. "Often it can be complicated to manage public relations when something terrible happens and the internal investigation of it, but I think that it's going to create some challenges [if the SJC affirms]."
Ms. Martin, a partner at Todd & Weld, focuses her practice on health care law and government investigations. She routinely advises clients in investigations brought by federal and state prosecutors and by government agencies.