Energy giant FirstEnergy Corp. has urged the Sixth Circuit Court of Appeals to reaffirm that investors suing over its $1 billion bribery scandal cannot depose company officials about internal investigations conducted by law firms Jones Day and Squire Patton Boggs.
In a filing Thursday, the Ohio-based utility accused investors of attempting to “gut” the court’s earlier writ of mandamus — a rare order that overturned a lower court’s decision forcing the company to hand over privileged materials. The plaintiffs, FirstEnergy said, are now wrongly arguing that while documents are protected, depositions about the same privileged facts are still fair game.
“Ordinarily, we’d just request denial of rehearing,” FirstEnergy told the court. “But here, the court should explicitly confirm that its mandamus ruling bars both documents and deposition testimony drawn from privileged internal probes.”
Company Defends Attorney-Client Privilege
The company said the district court erred when it ruled that internal investigations weren’t protected under attorney-client privilege, ordering the release of confidential findings and testimony. The Sixth Circuit later vacated that order in full, but investors have continued pressing for depositions, citing a special master’s interpretation that favors them.
FirstEnergy countered that such a reading “distorts established privilege law,” warning that allowing questioning about information “learned solely through privileged internal investigations” would dismantle corporate confidentiality protections established under the landmark Upjohn Co. v. United States decision.
The company rejected the plaintiffs’ reliance on the 2022 United States v. Sadler case, arguing that it doesn’t apply. “Sadler involved attorneys merely relaying third-party facts. This case involves counsel gathering internal company data to provide legal advice — the core of privilege,” FirstEnergy said.
