Whether a defense attorney in an internal investigation represents an employer or an employee, it is imperative that the attorney is prepared for the issues that arise when collecting data from a personal smartphone. The authors outline the nearly infinite universe of potentially collectible data that exists within smartphones. Also, they provide an overview of the rights and interests of the employer and employee. Finally, the authors provide a cautionary note about the scope of internal investigations in which a private company becomes a de facto arm of the government.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent-Appellant Facebook.

Many things are uncertain at the beginning of an internal investigation, and a company should ensure that the investigation and its conclusions will be protected by the attorney-client privilege, at least until the company makes a considered decision to waive the privilege. Anne Chapman and Kathleen Brody discuss some of the considerations touching the attorney-client privilege in internal investigations. Taking lessons from recent high-profile litigation, they provide tips for best practices.