Introduction

This published mandamus decision arises out of a high-stakes securities class action and parallel enforcement environment following the unsealing of a federal RICO complaint against former Ohio House Speaker Larry Householder that implicated FirstEnergy Corporation in a legislative bribery scheme surrounding Ohio House Bill 6. In the immediate aftermath, FirstEnergy and a special committee of its board retained outside counsel—Jones Day and Squire Patton Boggs—to conduct internal investigations and advise on criminal subpoenas and related legal exposure.

During discovery in the consolidated securities class actions, shareholder plaintiffs moved to compel “all previously withheld documents” relating to both internal investigations and to compel testimony about those investigations. A special master recommended—and the district court ordered—sweeping production. FirstEnergy sought mandamus. The Sixth Circuit stayed the order and now grants the writ, vacating the production order.

The decision squarely addresses two core issues:

• Whether the attorney–client privilege and work-product doctrine protect communications and materials generated during corporate internal investigations conducted in response to government criminal probes and anticipated civil litigation.
• Whether mandamus is available to prevent irreparable disclosure of privileged and work-product materials in the face of a broad discovery order.

Along the way, the court also clarifies compliance with 28 U.S.C. § 1746 for unsworn declarations, responds to “business purpose” objections, addresses privilege log obligations given party stipulations, and rejects several asserted privileges waivers, including disclosures to an independent auditor.

Summary of the Opinion

The Sixth Circuit holds that the communications and materials generated by Squire and Jones Day during FirstEnergy’s internal investigations are protected both by the attorney–client privilege and the work-product doctrine. The court concludes the district court committed clear legal error by ordering wholesale production. It further holds mandamus relief is warranted under Cheney’s three-part test: there is no adequate alternative remedy, FirstEnergy has a clear and indisputable right to relief, and issuance of the writ is appropriate under the circumstances.

Key holdings

• Privilege applies under Upjohn: Internal investigative communications with outside counsel retained to assess potential criminal and civil liability and to advise on government subpoenas are privileged legal advice, even if later used to inform business decisions.
• Work-product protection attaches under the “because of” test: Materials were prepared “because of” anticipated and actual litigation spurred by a criminal complaint, subpoenas, an SEC inquiry, state investigations, and multiple shareholder suits; the district court erred focusing on business considerations.
• § 1746 substantial compliance is sufficient: An unsworn declaration “under penalty of perjury” substantially complied with § 1746 even without the words “true and correct,” so the district court erred in excluding it.
• Privilege log/in camera objections fail given party stipulation and breadth of the request: The parties stipulated no logging was required for privileged materials exchanged with outside counsel after July 21, 2020, concerning the Householder matters; plaintiffs’ undifferentiated demand for “all previously withheld documents” did not require itemized identification.
• Mandamus is available notwithstanding Mohawk: Although post-judgment appeal generally suffices, mandamus remains a “safety valve” for “particularly injurious” privilege orders; disclosing internal-investigation materials would inflict irreparable harm not remediable on appeal.
• No waiver shown: Overlapping disclosures in a deferred prosecution agreement and civil filings did not reveal the “substance of attorney advice”; sharing non-privileged materials with an independent auditor did not waive privilege, and work-product is not waived absent disclosure to an adversary.

Detailed Analysis

Precedents and Authorities Driving the Decision

Attorney–Client Privilege

• Upjohn Co. v. United States, 449 U.S. 383 (1981): The cornerstone. Upjohn held that corporate communications with counsel during internal investigations are privileged when undertaken to secure legal advice regarding potential civil or criminal exposure. The Sixth Circuit finds this case “on all fours”—FirstEnergy’s board and company retained outside counsel post‑DOJ complaint to investigate facts and render legal advice on criminal exposure and related liabilities. The court emphasizes, as Upjohn did, that legal advice necessarily integrates facts and that protecting these communications fosters “full and frank communication.”
• United States v. Roberts, 84 F.4th 659 (6th Cir. 2023): Reinforces that the privilege turns on whether the primary purpose of the communication is to secure legal advice, not on how the advice might later be used. The panel invokes Roberts to reject the district court’s focus on downstream “business” uses of the investigations.
• Swidler & Berlin v. United States, 524 U.S. 399 (1998): Cited to illustrate that businesses routinely consult counsel on matters with business overlap; such overlap does not defeat privilege.
• United States v. Sadler, 24 F.4th 515 (6th Cir. 2022) and Upjohn’s “facts are not privileged” principle: The court acknowledges that facts are not privileged but underscores that the internal investigations involved legal analyses and liability assessments, not mere “sterile summaries.”
• Trump v. Vance, 591 U.S. 786 (2020): Quoted for the privilege’s exception to the general rule that the public has a right to evidence, highlighting the privilege’s weight in the balance.

Work-Product Doctrine

• Hickman v. Taylor, 329 U.S. 495 (1947): The seminal work-product case articulating the adversarial system rationale—protecting counsel’s mental impressions, theories, and strategy from undue intrusion.
• United States v. Nobles, 422 U.S. 225 (1975): The court uses Nobles’s “intensely practical” lens to insist on attention to “realities of litigation” when determining work-product applicability.
• United States v. Roxworthy, 457 F.3d 590 (6th Cir. 2006): Establishes the “because of” test in the Sixth Circuit. The panel holds the “driving force” behind FirstEnergy’s investigations was the criminal complaint, subpoenas, and parallel civil/regulatory actions—squarely satisfying Roxworthy.
• In re Professional Direct Insurance Co., 578 F.3d 432 (6th Cir. 2009): Confirms the “because of” framework and distinguishes materials created in the ordinary course of business from those created due to anticipated litigation—the former are not protected, the latter are.

Mandamus and Appellate Review

• Cheney v. U.S. Dist. Ct., 542 U.S. 367 (2004): Provides the three-part test: no adequate alternative remedy; clear and indisputable right; and the writ’s appropriateness. The Sixth Circuit carefully marches through each element.
• Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009): While cautioning that final judgment appeals generally suffice for privilege rulings, Mohawk recognizes mandamus as a “safety valve” for serious, particularly injurious orders. The panel leans on this language to justify immediate correction here.
• In re Lott, 424 F.3d 446 (6th Cir. 2005) and In re Kellogg, 756 F.3d 754 (D.C. Cir. 2014): Both underscore that compelled disclosure irreparably harms privilege; you cannot “unring the bell.”
• Holt–Orsted v. City of Dickson, 641 F.3d 230 (6th Cir. 2011): Clarifies the distinction between collateral-order appeals (generally unavailable for discovery orders) and mandamus (favored for privilege disputes when appropriate).
• In re Express Scripts (6th Cir. June 3, 2025) (unpublished order): Discussed to show consistency: mandamus lies when there is a clear abuse of discretion; dismissed there because no clear right was shown—unlike here.

Declarations, Waiver, and Discovery Management

• 28 U.S.C. § 1746; LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61 (2d Cir. 1999): § 1746 requires substantial—not verbatim—compliance. The court holds a declaration stating “under penalty of perjury” and dated is sufficient, despite omission of “true and correct.” Distinguishes Bonds v. Cox, 20 F.3d 697 (6th Cir. 1994), which involved an undated declaration.
• Fed. R. Civ. P. 26(b)(3) and 34(b)(1)(A): The work-product rule and specificity requirement for document requests. Plaintiffs’ broad demand for “all previously withheld documents” and the parties’ stipulation obviated the need for privilege logs or in camera review here.
• Waiver cases:
  • In re King’s Daughters Health Sys., Inc., 31 F.4th 520 (6th Cir. 2022): Voluntary disclosure of privileged communications waives privilege as to those communications; crucially, disclosing non-privileged information does not waive privilege.
  • In re Columbia/HCA Healthcare Corp., 293 F.3d 289 (6th Cir. 2002): Work-product is generally waived by disclosure to an adversary; the Sixth Circuit rejects broader “selective waiver.”
  • United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010); New Phoenix Sunrise Corp. v. C.I.R., 408 F. App’x 908 (6th Cir. 2010): Disclosures to auditors do not automatically waive work-product; auditors are not adversaries in this context.
  • In re Grand Jury Proc. Oct. 12, 1995, 78 F.3d 251 (6th Cir. 1996); United States v. Collis, 128 F.3d 313 (6th Cir. 1997); In re Qwest Commc’ns Int’l Inc., 450 F.3d 1179 (10th Cir. 2006): Disclosing ultimate findings or conclusions does not necessarily reveal the “substance of legal advice” and thus does not effect a broad waiver.
• Professional ethics: AICPA Code of Professional Conduct § 1.700.001.01 (auditors’ confidentiality obligations) supports the conclusion that independent auditors are not adversaries for work-product waiver purposes.

Legal Reasoning

1) Privilege: Legal advice remains privileged despite business ramifications

The court applies Upjohn’s core principle: when a corporation engages counsel to investigate potential wrongdoing and advise on legal exposure, the resulting communications are privileged. The district court’s error lay in treating later “business uses” of the investigations (e.g., governance or employment decisions) as negating the privilege. The Sixth Circuit rejects this, emphasizing that the relevant question is whether legal advice was sought and provided—something the record confirmed repeatedly through descriptions of counsel’s “investigative findings, legal analyses, and assessments of potential criminal and civil liability.” Business implications are common and collateral; they do not transmute legal communications into non-legal advice.

2) Work product: The “because of” test met in a litigation crisis

Work-product protection attaches to materials prepared “because of” litigation, not those prepared in the ordinary course of business. The panel canvasses the timeline: DOJ unsealed a criminal complaint implicating the company; criminal subpoenas issued; the stock collapsed; SEC, state, and utility regulators launched investigations; eight shareholder suits were filed. Plaintiffs themselves conceded no internal investigations would have occurred “but for” the DOJ investigation. Against that backdrop, the “driving force” behind the investigations was actual and threatened litigation. The district court erred by focusing on “employment decisions and business concerns,” disregarding the “realities of litigation.”

3) No procedural default: Declaration, logs, and specificity

The district court excluded a director’s declaration for omitting “true and correct” from the § 1746 attestation. The Sixth Circuit deems this a scrivener’s omission and holds the declaration substantially compliant because it was signed, dated, and sworn “under penalty of perjury.” In any event, the privilege/work-product outcome does not depend on the declaration; the circumstances independently demonstrate legal advice and litigation anticipation.

As to privilege logs, the parties stipulated none were required for communications with outside counsel concerning the Householder matters after July 21, 2020. Moreover, plaintiffs’ broad, undifferentiated demand for “all previously withheld documents” did not impose a duty to itemize; Rule 34 requires requests be described with reasonable particularity.

4) Mandamus is appropriate and necessary

Applying Cheney:

• No adequate alternative remedy: Interlocutory certification was denied; defiance-and-contempt risks uncertain sanctions with potentially no immediate review; post-judgment appeal would come too late because “you can’t unring the bell.”
• Clear and indisputable right: The district court’s order departed from “strong and longstanding” privilege and work-product doctrine; the errors were not close calls.
• Appropriate under the circumstances: This was a “bet-the-company” environment. Forcing disclosure would affect not only this case (and parallel proceedings such as before the Public Utilities Commission of Ohio) but also sow “substantial uncertainty” for corporations broadly, undermining Upjohn’s promise of candid internal investigations.

While Mohawk generally channels privilege disputes to final judgment appeals, it expressly preserves mandamus as a “safety valve” for “particularly injurious” rulings—precisely this situation, where the district court ordered disclosure of all withheld materials from two outside-counsel investigations spawned by a storm of legal actions.

5) No waiver supports the broad order

The panel rejects several waiver theories:

• Overlapping disclosures in DPA and civil filings: Most material was non-privileged in any event; ultimate findings, without revealing the “substance of legal advice,” do not waive privilege or work product.
• Disclosures to PricewaterhouseCoopers (auditor): Disclosing non-privileged materials does not waive privilege. For work-product, waiver requires disclosure to an adversary; independent auditors are not adversaries, and their ethical duties reinforce this. The record indicated privileged materials were withheld from PwC.

Impact and Implications

For corporate internal investigations

• Reaffirmation of Upjohn protection: Communications with outside counsel during internal investigations prompted by government inquiries remain privileged even when they inform business decisions. Expect courts to view post‑crisis engagements by independent counsel as paradigmatic legal advice.
• Expanded clarity on work product: The “because of” test robustly applies where a criminal complaint, subpoenas, civil suits, and regulatory probes coincide. Expect courts to weigh the litigation context holistically, not isolate business-side repercussions.
• Auditor interactions: Sharing non-privileged information with auditors does not waive privilege; work-product protection generally survives auditor disclosures absent an adversarial relationship. This is particularly important for public companies navigating simultaneous audit and enforcement cycles.

For discovery practice and case management

• Privilege logs and stipulations: Party stipulations can streamline privilege logging duties in crisis litigation. Courts should honor such stipulations and avoid penalizing parties for following them, especially when requests are undifferentiated.
• Global production orders disfavored: Sweeping orders compelling “all withheld materials” from entire internal investigations are vulnerable to mandamus if they ignore bedrock protections and the practical litigation context.

For appellate procedure and mandamus

• Mohawk’s “safety valve” is real: The Sixth Circuit signals willingness to use mandamus to correct “particularly injurious” privilege/work-product errors affecting confidential internal investigations, even for party-litigants.
• Systemic stability matters: The court credits amici warnings about uncertainty and chilling effects on internal investigations, reinforcing predictability in privilege doctrine as a policy imperative.

Complex Concepts Simplified

• Attorney–client privilege: Protects confidential communications between clients and lawyers made for the purpose of obtaining or providing legal advice. In corporations, this includes employees communicating with counsel during internal investigations when the aim is legal advice about potential violations and liabilities.
• Work-product doctrine: Protects materials prepared by or for attorneys “because of” anticipated litigation, especially legal analyses, strategies, and mental impressions. It is broader than privilege but can be overcome in narrow circumstances; importantly, disclosure to non-adversaries (e.g., auditors) generally does not waive it.
• “Because of” test: Asks whether the materials would have been created in substantially similar form absent the prospect of litigation. If not—because litigation was the driving force—work-product protection applies.
• Mandamus: An extraordinary appellate remedy used to correct clear legal errors causing irreparable harm when no adequate alternative means of relief exist and granting the writ is appropriate under the circumstances.
• Waiver of privilege/work product: Privilege is waived by voluntary disclosure of the substance of privileged communications to third parties; work-product is generally waived only by disclosure to adversaries. Disclosing facts or ultimate conclusions, without revealing legal advice, typically does not waive protection.
• § 1746 unsworn declarations: Federal law allows declarations made “under penalty of perjury” to substitute for notarized affidavits if they substantially comply with the statute’s form and are dated and signed.
• Collateral-order doctrine vs. mandamus: Immediate appeal of discovery orders is rarely available under the collateral-order doctrine; mandamus can provide immediate review in exceptional cases like serious privilege breaches.

Practical Takeaways

• When a government investigation breaks, engage counsel with clear mandates to investigate and advise on legal exposure; document the legal purpose in engagement letters and board minutes.
• Expect courts to protect internal investigative communications even if they inform later business actions; do not assume “business use” waives or negates privilege.
• Structure investigative work product to reflect litigation anticipation—timelines, references to subpoenas, enforcement inquiries, and pending suits help demonstrate the “because of” rationale.
• Use and honor privilege-log stipulations tailored to crisis litigation; resist undifferentiated demands for “all withheld materials.”
• Coordinate carefully with auditors: share non-privileged information as needed, preserve privileged communications, and memorialize withheld categories.
• Ensure § 1746 declarations include the preferred “true and correct” language, but recognize that “under penalty of perjury,” signed and dated, may suffice.
• Consider mandamus when a discovery order would force sweeping disclosure of internal-investigation materials and other avenues (interlocutory appeal, contempt) are inadequate or impractical.

Conclusion

In re FirstEnergy Corp. delivers a strong, clarifying message for companies navigating the crucible of parallel criminal, regulatory, and civil proceedings: internal investigations led by outside counsel in response to government probes are protected by the attorney–client privilege and the work-product doctrine, even when their insights influence business decisions. The court firmly applies Upjohn and the “because of” test, rejects contrary inferences from business considerations, honors party stipulations on logging, recognizes substantial compliance under § 1746, and declines to find waiver on the bases offered.

Equally important is the procedural signal: mandamus remains a viable and necessary “safety valve” to prevent irreparable harm from “particularly injurious” discovery orders compelling disclosure of privileged internal-investigation materials. By granting the writ and vacating the production order, the Sixth Circuit reinforces predictable privilege standards essential to candid corporate self-scrutiny—stability that benefits courts, companies, auditors, regulators, and investors alike.