The University of Michigan’s athletic department has faced a series of high-profile controversies over recent years, drawing intense public and legal scrutiny from multiple directions.
Those controversies include the Connor Stallions sign-stealing investigation, NCAA enforcement proceedings, Jim Harbaugh’s show-cause penalty, and allegations of sexual harassment within the athletic department.
The university retained national law firm Jenner and Block to conduct an independent investigation into these matters, a decision that has since generated its own legal dispute.
A lawsuit filed under Michigan’s Freedom of Information Act seeks disclosure of records related to that investigation, while the university argues the materials are protected by attorney-client privilege and the work-product doctrine.
The case raises a fundamental question for executives, board members, and public officials: when should an organisation retain outside counsel for an internal investigation, and what legal protections can follow?
When allegations involve senior leadership, potential criminal conduct, regulatory exposure, or anticipated litigation, organisations frequently turn to outside counsel rather than internal compliance or human resources teams.
Outside counsel is engaged not merely to establish facts but to provide legal advice, evaluate risk, analyse applicable laws, and prepare the organisation for potential litigation or regulatory scrutiny.
That legal purpose is often the determining factor in whether communications and investigative materials remain protected from disclosure to third parties or opposing litigants.
The attorney-client privilege protects confidential communications between clients and attorneys made for the purpose of obtaining or providing legal advice, but courts are careful to examine whether that standard is genuinely met.
As established in Upjohn Co. v. United States, 449 U.S. 383 (1981), the privilege protects communications rather than underlying facts, meaning witnesses cannot refuse to disclose facts simply because those facts were discussed with counsel.
The work-product doctrine offers a separate but related layer of protection, covering materials prepared by or for attorneys in anticipation of litigation, including interview notes, witness memoranda, investigative summaries, and strategy assessments.
Opinion work product, which reflects an attorney’s mental impressions, legal theories, and strategy, receives significantly stronger protection than factual work product and is rarely subject to disclosure.
Privilege can be waived if confidentiality is not carefully maintained, and organisations must be mindful of how widely investigative materials are shared internally and externally.
The University of Michigan dispute carries added complexity because it involves a public institution subject to Michigan’s Freedom of Information Act, which reflects a strong policy favouring government transparency and accountability.
Courts must balance that transparency interest against the equally important purposes served by attorney-client privilege and work-product protection in enabling candid legal advice and effective litigation preparation.
The outcome of the Michigan case may provide practical guidance for other public entities, including universities, municipalities, and school districts that face similar tensions between disclosure obligations and legal privilege.
Organisations undertaking internal investigations should also consider whether to present findings orally rather than in written reports, as oral presentations may better protect legal analysis when litigation or public records requests are anticipated.
Careful structuring of an investigation from the outset, including how counsel is retained, who receives materials, and how confidentiality is maintained, can have lasting consequences for what remains legally protected.