Produce My Notes? I Thought That Was Work Product; Not Necessarily The Case Under SEC v. Roberts

January 30, 2009 The Legal Intelligencer

In Securities and Exchange Commission v. Kent H. Roberts, No. C 07-04580 (N.D. Cal.), Judge Marilyn Hall Patel of the United States District Court for the Northern District of California ordered production of certain documents created by a law firm that conducted a stock option backdating investigation. The Roberts decision serves as a stern warning to any lawyer who conducts corporate investigations that notes and presentations may not be held sacrosanct.

McAfee, Inc. formed a Special Committee of its Board of Directors to investigate allegations of stock option backdating and hired Howrey, LLP to do so. As part of the investigation, Howrey prepared presentations that contained its findings, as well as information gathered from witness interviews. Howrey presented this information to: McAfee’s Board; the SEC; the Department of Justice; and McAfee’s former and current auditors. Kent Roberts, a former Executive Vice President of McAfee, sought the production of the following: notes from interviews that Howrey conducted; notes from meetings and communications between Howrey, the SEC and DOJ (collectively, the Government); and notes from communications between Howrey and the Special Committee, as well as Howrey and the Board.

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