When the Company Turns on You: Work-Product Doctrine in White Collar Investigations

Dmitriy Smirnov

May 23, 2025

Firm News

Imagine this: You’re a mid-level executive at a healthcare company. One morning, there’s a knock at your door. It’s the FBI. You’re informed that you’re the target of a federal investigation into alleged white collar health care fraud—perhaps related to billing practices, kickbacks, or regulatory missteps. The allegations stem from a government probe—one your employer quietly self-reported after conducting an internal investigation. You cooperated fully, gave an honest interview, and assumed the company had your back.

Now, you’re the target.

You ask for access to the internal investigation materials—your own statements, the facts that could clear your name. But the company refuses. Their lawyers claim the documents are protected under the work product doctrine. You’re left in the dark, fighting for your career—and possibly your freedom—without the very evidence that could exonerate you.

This isn’t fiction. It happens all the time.

The Work Product Doctrine: Shield or Sword?

The work product doctrine, rooted in the Supreme Court’s decision in Hickman v. Taylor, was designed to protect the mental impressions and strategies of attorneys—not to hide facts. But in modern white collar investigations, it’s often used as a shield to block access to critical information.

This doctrine becomes especially contentious when a company’s internal investigation—often conducted with outside counsel—forms the basis of a government enforcement action. The company may cooperate with the SEC or DOJ, hand over summaries of employee interviews, and even waive privilege selectively. But when a former employee seeks access to those same materials to defend themselves, the company invokes work product protection.

Insider Trading and Health Care Fraud: Real-World Stakes

While DOJ investigations often trigger these disputes, the same dynamics could also play out in SEC enforcement actions, such as insider trading cases. Consider a scenario where a biotech executive is accused of tipping off a friend before a major FDA announcement. In both types of cases, internal investigations often precede government action. If the company’s lawyers summarize interviews and share them with the government, they may inadvertently waive work product protection—at least in part.

In SEC v. Herrera, 324 F.R.D. 258 (S.D. Fla. 2017), a law firm disclosed attorney-prepared interview summaries to the SEC. The court held that this disclosure waived work product protection for those interviews. The takeaway? Once shared with an adversary, even orally, work product protection may be lost.

Similarly, in United States v. Weisberg, No. 08-CR-347 (NGG) (RML), 2011 U.S. Dist. LEXIS 37221 (E.D.N.Y. Apr. 5, 2011), a defendant subpoenaed internal law firm records to support his defense. The court allowed access to factual, non-privileged materials but protected the firm’s legal strategy. These cases show that courts are willing to pierce the work product shield—especially when fairness and due process are at stake.

Drawing the Line: Facts vs. Strategy

The Florida appellate decision in Walt Disney Parks & Resorts U.S., Inc. v. Alesi reinforces a critical distinction: the work product doctrine protects legal strategy, not facts. The court emphasized that while documents may be protected, the facts they contain often are not. In Disney, the plaintiff sought factual information about an incident involving a Disney employee. The court ruled that Disney could not withhold objective facts, even if they were embedded in attorney work product.

This principle is vital for employees caught in the crossfire of government investigations. If the only record of what happened is buried in a company’s internal report, courts must balance the company’s right to protect legal strategy with the individual’s right to defend themselves.

Why Rule 16 Won’t Save You

Some might assume that the government is obligated to turn over your own statements under Federal Rule of Criminal Procedure 16(a)(1)(B). And that’s partially true: the rule requires the government to disclose a defendant’s written or recorded statements, or oral statements made in response to interrogation by a known government agent.¹

But here’s the catch: in our scenario, the statement wasn’t made to the government—it was made to your employer during an internal investigation. That means Rule 16 doesn’t apply. The government doesn’t have to turn it over, and the company can still claim work-product protection. So that rule won’t save you. ²And if the company fails to provide an Upjohn warning during the interview, that can create serious legal and ethical complications.³

Navigating the Gray Area

These disputes are increasingly common in white collar cases, where internal investigations serve dual purposes: uncovering facts and managing legal risk. For defense counsel, understanding how to challenge work product assertions—and when courts are likely to compel disclosure—is essential.

Whether you’re facing an SEC subpoena, a DOJ indictment, or a parallel civil enforcement action, the ability to access internal investigation materials can make or break your defense.

How We Can Help

At Fridman Fels & Soto, we understand the high stakes of white collar investigations and regulatory enforcement actions. Founding partner Alex Soto brings a rare combination of experience as a former federal prosecutor and senior SEC official. He has tried over thirty cases and regularly represents clients in complex matters involving the DOJ, OFAC, SEC, CFTC, and FINRA.

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¹Under Rule 16(a)(1)(B), the government must disclose a defendant’s written or recorded statements in its possession, as well as oral statements made in response to interrogation by a known government agent. However, this rule does not apply to statements made to private parties, such as an employer during an internal investigation.

²If the employee is a public employee, the Garrity rule—from Garrity v. New Jersey, 385 U.S. 493 (1967) —may apply. Under Garrity, statements made under threat of job loss during an internal investigation cannot be used against the employee in a criminal case. This protection, however, does not guarantee access to the statements themselves—it only limits their admissibility in a criminal prosecution.

³In internal investigations, private employers are not constitutionally required to give warnings. However, if the company fails to provide an Upjohn warning, it risks losing the ability to assert attorney-client privilege over the employee’s statements. The employee may also argue they were misled into believing the company’s lawyer represented them personally, creating ethical and evidentiary complications.