Asserting Privilege to Block FTC Interview Questions

Dealing with a government investigation can be scary. But knowing your rights, staying calm, and being prepared can help you handle an FTC interview, according to this article. When the FTC investigates your company, one of the most important privileges you can use is attorney-client privilege, says this resource. What does asserting privilege actually look like? Here’s what you need to know.

What is Privilege?

Privilege refers to the right to keep certain information confidential. There are a few types of privilege that can apply in an FTC investigation:

• Attorney-client privilege protects confidential communications between an attorney and client for the purpose of legal advice
• Work product doctrine protects materials lawyers prepare in anticipation of litigation
• Deliberative process privilege shields government agency deliberations and recommendations

If privilege applies, you can refuse to disclose the protected information to the FTC. This can block their access to sensitive materials and strengthen your defense.

How to Assert Privilege

Carefully review any FTC requests for information. Identify any privileged materials they are seeking. To assert privilege:

1. Specify which privilege applies. For example, say “We are asserting attorney-client privilege over the Jones legal memo.”
2. Explain why the privilege applies. For instance, “This memo contains confidential communication between Company X and its attorneys for the purpose of providing legal advice.”
3. Decline to produce the privileged information.

You don’t have to turn over privileged materials. But you may need to provide some details, like a privilege log describing withheld documents.

Avoiding Waiver

You can unintentionally waive privilege if you aren’t careful. Some ways privilege can be waived:

• Sharing privileged materials with third parties
• Using privileged documents to support your defense
• Failing to properly assert privilege when requested

To prevent waiver, limit access to privileged materials and watch what you disclose to the FTC. Get advice from legal counsel on asserting privilege correctly.

When Privilege Might Not Apply

There are some cases where privilege claims fail:

• The crime-fraud exception – Privilege doesn’t apply if attorney-client communications furthered criminal or fraudulent conduct.
• Implied waiver – Using privileged materials to support your case waives privilege over related communications.
• Inadvertent disclosure – Mistakenly revealing privileged information to the FTC could negate privilege.

Additionally, privilege may not protect all work product. Only materials prepared in anticipation of litigation, like memos analyzing legal risks, qualify. Business documents created in the ordinary course are likely discoverable.

Getting Legal Help

Navigating privilege issues in an FTC investigation is tricky. Consult experienced legal counsel to:

• Determine what materials are privileged.
• Ensure privilege is properly asserted.
• Avoid any waiver pitfalls.
• Challenge improper privilege claims by the FTC.

With lawyer guidance, you can effectively assert privilege and gain a strategic advantage in your FTC case.

The FTC takes confidentiality seriously during investigations. Their merger review protocol requires staff to get consent before sharing company materials with state attorneys general, according to the FTC website. FTC attorneys must also sign confidentiality agreements with companies under investigation.

But you can’t assume FTC lawyers will keep everything privileged. Take proactive steps to protect sensitive information through careful privilege assertions. Don’t let a misstep derail your defense.

When the FTC Overreaches

What if the FTC tries to obtain materials you believe are privileged? You can fight improper discovery requests.

In one merger investigation, the company moved to compel the FTC to return allegedly privileged documents inadvertently produced. The company argued attorney-client privilege and work product protection applied.

If the FTC seeks privileged information without justification, don’t be afraid to push back. File a motion to block them from accessing protected materials. Get help from experienced counsel to challenge overbroad discovery.

Using Privilege Strategically

While privilege lets you withhold information, it can also be used strategically to influence FTC perceptions.

If the FTC knows you have privileged communications about key issues, they may assume you have something to hide. Whether that’s true or not, this “privilege shadow” can cast suspicion.

You may decide to partially waive privilege and reveal some favorable materials. This shows you aren’t concealing relevant information.

Selective disclosure puts you in control of the narrative. But it requires meticulous planning to avoid wider privilege waiver.

Getting Comfortable with Discomfort

FTC investigations are inherently uncomfortable. Asserting privilege likely won’t make your situation worse. At best, it prevents harmful disclosures and protects your defense strategy.

View privilege assertions as a key part of advocating for yourself. You don’t have to share everything with the FTC, no matter how much they pressure you.

Standing up for your rights won’t be easy or smooth. But it beats compromising sensitive information. With preparation and perseverance, you can get through the tough conversations.