While federal litigators well know that their investigative file will be turned over to the defendant, it was quite shocking for those of us litigating on behalf of the federal government at the time to imagine that presumably privileged material could be disclosed and potentially damage our agency’s positions.
Overall, the Ripple court’s decision certainly does counsel changes to practice in agency investigations and litigation. Notes taken in meetings, especially those with third parties, should be a judgmental distillation of the facts, including personal observations and commentary, versus a quasi-transcript.
Drafts reflecting the opinions and remarks of individual employees should be carefully crafted and disclaimed to ensure that they do not adversely affect the agency’s position. And, defendants will likely be more aggressive in their efforts to seek disclosure of documents that may not qualify for the deliberative process privilege.
‘Enforcement 40’ for 2020
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