Congressional Investigations and the Attorney-Client Privilege

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with Emily R. Garnett, an Associate in the firm’s Denver, CO office.

As Democrats assume control over the U.S. House of Representatives for the next Congress, many insiders anticipate an increase in congressional oversight investigations. Although much of the focus will be directed at the Trump administration itself, certain industries are also likely to be targeted, including health care, energy, financial services, pharmaceuticals, technology, and for-profit higher education, to name just a few. For many targets of this oversight activity, this will be their first foray into the unique world of congressional investigations where some of the usual rules don’t really apply.

Although it may look a lot like discovery in civil litigation, there are significant differences between litigating a lawsuit and responding to a congressional investigation. Unlike ordinary civil litigation, in a congressional investigation, the rules of evidence, the rules of procedure, and even common-law privileges don’t really apply, meaning that Congress does not even necessarily recognize an otherwise valid assertion of the attorney-client privilege in response to a request for documents or witness testimony. This reality can be of critical importance to a company that finds itself on the receiving end of a congressional subpoena. Continue reading “Congressional Investigations and the Attorney-Client Privilege”