In re: Firstenergy Corporation

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0272p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: FIRSTENERGY CORPORATION,
Petitioner.
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No. 24-3654
On Petition for a Writ of Mandamus
United States District Court for the Southern District of Ohio at Columbus.
Nos. 2:20-cv-03785; 2:20-cv04287—Algenon L. Marbley, District Judge.
Decided and Filed: October 3, 2025
Before: SUTTON, Chief Judge; BATCHELDER and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR A WRIT OF MANDAMUS and REPLY: Robert J. Giuffra, Jr., David
M.J. Rein, SULLIVAN & CROMWELL LLP, New York, New York, Morgan L. Ratner,
SULLIVAN & CROMWELL LLP, Washington, D.C., for Petitioner. ON RESPONSE: Jason
Forge, ROBBINS GELLER RUDMAN & DOWD LLP, San Diego, California, for Respondents
Los Angeles County Employees Retirement Association, et al. ON BRIEF: John S. Williams,
WILLIAMS & CONNOLLY LLP, Washington, D.C., Eric C. Chaffee, CASE WESTERN
RESERVE UNIVERSITY SCHOOL OF LAW, Cleveland, Ohio, Roy T. Englert, Jr., Matthew
M. Madden, Mark H. Russell, KRAMER LEVIN NAFTALIS & FRANKEL LLP, Washington,
D.C., Jonathan M. Redgrave, REDGRAVE LLP, Chantilly, Virginia, for Amici Curiae.
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OPINION
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PER CURIAM. FirstEnergy Corporation undertook two internal investigations after the
federal government brought charges against former Ohio House Speaker Larry Householder,
because the charges implicated FirstEnergy in a bribery scheme related to the passage of Ohio
House Bill 6. Soon after, shareholders sued FirstEnergy in a securities class action and sought
the fruits of those investigations during discovery. The district court ordered their production,
>

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prompting FirstEnergy’s petition for a writ of mandamus. We grant the petition and vacate the
district court’s production order.
I.
In late 2016, FirstEnergy, an Ohio-based public utility company, faced financial
headwinds due to two failing nuclear plants that its subsidiary owned. To solve the problem,
FirstEnergy allegedly engaged in a bribery scheme with Larry Householder, then a member of
the Ohio House of Representatives. FirstEnergy allegedly contributed millions of dollars to
Householder’s campaign funds through a network of fundraising groups, and Householder threw
himself behind the passage of House Bill 6, a piece of legislation that promised FirstEnergy a
$1.3 billion bailout and a fixed revenue stream of $100 million annually, all at ratepayers’
expense.
Matters took a turn in July 2020, when the federal government released a criminal
complaint charging Householder with violating the Racketeer Influenced and Corrupt
Organizations Act, see 18 U.S.C. § 1962(d), and, in connection with the complaint, issued
subpoenas to FirstEnergy. The complaint described how an unnamed company (understood to
be FirstEnergy) and its executives contributed millions to the campaign funds of Ohio politicians
to ensure House Bill 6’s passage. The day after the complaint became public, FirstEnergy’s
stock price dropped by 45%.
Within a week, FirstEnergy and an independent committee of its board retained separate
outside counsel to conduct internal investigations. The board hired Squire Patton Boggs LLP to
investigate the allegations in the Householder complaint. And FirstEnergy hired Jones Day to
investigate the allegations and to advise the company about how to handle the subpoenas.
The Householder complaint and FirstEnergy subpoenas generated an assortment of legal
and regulatory actions against FirstEnergy. Within weeks, various state and federal regulators—
the Securities and Exchange Commission, the Ohio Attorney General, and the Public Utilities
Commission of Ohio—initiated investigations against FirstEnergy. By that time, FirstEnergy
and various directors and officers faced eight civil lawsuits asserting securities and RICO claims.

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Among this raft of lawsuits was this one. Two shareholders filed securities class actions
against FirstEnergy on behalf of all people and entities that bought FirstEnergy stock during the
alleged bribery scheme. They claimed that FirstEnergy and several executives defrauded
FirstEnergy investors in violation of federal securities laws.
That lawsuit led to this attorney-client and work-product dispute. During discovery, the
claimants sought complete access to the fruits of the Squire and Jones Day investigations,
moving to compel the production of “all previously withheld documents” related to both
investigations. R.489-1 at 9. They also demanded that the district court order FirstEnergy’s
witnesses to “answer all questions (past and future) related to the internal investigation[s].”
R.489-1 at 9. FirstEnergy opposed the motion.
A special master recommended that the court grant the claimants’ motion and ordered
FirstEnergy to “produce all previously withheld documents related to” both investigations.
R.571 at 17. The district court accepted the special master’s recommendation, and the court
denied FirstEnergy’s motion to certify the order for interlocutory review, see 28 U.S.C.
§ 1292(b). FirstEnergy filed a petition for mandamus relief with this court and requested a stay
of the district court’s order. We granted the stay and now turn to the mandamus petition.
II.
Two questions shape our review. Did the district court’s privilege and work-product
rulings amount to legal error? If so, were the errors sufficiently exceptional to warrant
mandamus relief? See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004).
A.
Attorney-client privilege. The attorney-client privilege “is the oldest of the privileges for
confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S.
383, 389 (1981). It represents a sturdy exception to the common-law maxim that the public “has
a right to every man’s evidence.” Trump v. Vance, 591 U.S. 786, 799 (2020). The privilege
applies to confidential communications between a lawyer and his client arising from the client’s
request for legal advice. See In re Grand Jury Subpoenas, 454 F.3d 511, 519 (6th Cir. 2006).

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Upjohn sets the framework for this case. It held that the privilege applies when a
company seeks legal advice to assess risks of criminal and civil liability. 449 U.S. at 394–95. In
that case, Upjohn enlisted outside counsel to conduct an internal investigation after learning of
“possibly illegal” payments that the company had made. Id. at 386–87. The investigation
involved numerous communications between the company’s employees and its attorneys through
questionnaires and interviews, all of which the Supreme Court deemed privileged. Id. at 387,
397. The communications, the Court reasoned, gave the attorneys “a basis for legal advice
concerning [Upjohn’s] compliance” with a bevy of securities and tax laws, and “potential
litigation in each of these areas.” Id. at 394. They were thus part of Upjohn’s efforts to “secure
legal advice” about its potential criminal or civil wrongdoing. Id.
What was true for Upjohn is true for FirstEnergy. As with Upjohn, FirstEnergy and its
board hired lawyers to “secure legal advice” through internal investigations into the company’s
potential criminal and civil wrongdoing. Id. As soon as the Department of Justice arrested
Householder, unsealed his criminal complaint, and issued criminal subpoenas to FirstEnergy,
FirstEnergy retained Jones Day to investigate the allegations in the Householder complaint and
“advise the [c]ompany on its response” to the Justice Department’s “criminal investigation.”
R.511-1 ¶ 22. FirstEnergy’s board did likewise. It held “several” meetings to discuss “the
[c]ompany’s response” to the Justice Department’s “criminal investigation and litigation filed
against FirstEnergy.” R.511-1 ¶ 12. That’s when it decided to enlist Squire to conduct an
internal investigation into the allegations about Householder’s scheme with the company.
R.511-1 ¶ 13. In asking for outside counsel’s analysis about what happened and in seeking its
legal advice about what to do in response to the “very significant legal risk it suddenly faced,”
R.511-1 at ¶ 29, FirstEnergy and the board clearly sought legal advice.
And legal advice they received. As one FirstEnergy director put it, Squire attorneys “met
frequently” with directors overseeing the investigation “to discuss Squire’s investigative
findings, legal analyses, and assessments of potential criminal and civil liability.” R.511-1 ¶ 17.
Another director confirmed that the Squire lawyers provided “legal updates” on their
investigative findings. R.550-2 at 7. Jones Day likewise “conduct[ed] [its] investigation,”
R.259-5 at 18, and “examined carefully the relevant FirstEnergy Corp. records” “[i]n connection

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with” serving as “counsel for FirstEnergy Corp.” and responding to the Department of Justice
investigation. R.259-5 at 28. Those communications—including outside counsels’ analyses
about what acts occurred, whether those acts were illegal, and what criminal and civil
consequences might ensue—all involved requested legal advice. See Upjohn, 449 U.S. at 395,
397.
Work product. The work-product doctrine also covers FirstEnergy’s internal
investigations. The work-product doctrine applies to documents “prepared in anticipation of
litigation.” Fed. R. Civ. P. 26(b)(3). The protection ensures that an attorney may “assemble
information, sift . . . the relevant from the irrelevant facts, prepare his legal theories and plan his
strategy without undue and needless interference.” Hickman v. Taylor, 329 U.S. 495, 511
(1947). Work-product protection applies if the company or counsel created the documents
“because of” a party’s “reasonable” anticipation of litigation, as opposed to its ordinary business
purposes. In re Pros. Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009) (quotation omitted).
FirstEnergy’s materials meet this standard. The onslaught of legal and regulatory action
surrounding FirstEnergy’s investigations shows why. After the Justice Department unsealed the
Householder complaint, FirstEnergy and its board “anticipated” that the company “would face
government investigations, civil litigation, and regulatory proceedings.” R.511-1 ¶ 5. In the
aftermath of the 45% decline in FirstEnergy stock a day later, they “anticipated” even more legal
action in the form of federal securities law claims. R.72 ¶ 9; R.511-1 ¶ 5. Those expectations
prompted the internal investigations. Even the claimants acknowledged to the district court that
“[o]bviously no internal investigations would have taken place but for the Department of Justice
investigation.” R.529 at 8.
This anticipated legal risk became an actual legal risk. Within weeks, FirstEnergy
directors and officers faced eight shareholder lawsuits, as well as multiple investigations into
FirstEnergy by the Securities and Exchange Commission, the Ohio Attorney General, and the
Public Utilities Commission of Ohio. The claimants’ admission about the “but for” cause of the
internal investigations, together with the dramatic timeline of events, leaves no question as to
“the driving force behind” the investigations. United States v. Roxworthy, 457 F.3d 590, 595
(6th Cir. 2006) (quotation omitted). FirstEnergy’s internal investigations produced materials

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“because of” actual, not merely anticipated, legal and regulatory threats.
All in all, the attorney-client and work-product doctrines clearly covered these
communications.
B.
The district court’s explanations for its order do not alter this conclusion. It reasoned that
FirstEnergy initiated the investigations for business advice, not legal advice, based on its
observation that FirstEnergy later used the fruits of the investigations for business decisions. But
these bedrock protections are not so easily pierced. What matters under the attorney-client
privilege is whether a company seeks legal advice, see United States v. Roberts, 84 F.4th 659,
670 (6th Cir. 2023), not what it later does with that advice, U.S. ex rel. Hamrick v.
GlaxoSmithKline LLC, 814 F.3d 10, 17 (1st Cir. 2016). Over and over, FirstEnergy showed that
it primarily sought and received legal advice from its attorneys throughout the investigations.
Roberts, 84 F.4th at 670.
That FirstEnergy made business decisions based on this legal advice does not change
matters. Companies “regularly consult their attorneys about a variety of problems arising in the
course of the business.” Swidler & Berlin v. United States, 524 U.S. 399, 408 (1998). Think of
compensation plans, proposed sales, a potential bankruptcy, or decisions to terminate employees.
See, e.g., Alomari v. Ohio Dep’t of Pub. Safety, 626 F. App’x 558, 570–71 (6th Cir. 2015) (legal
advice on an employee’s termination); GlaxoSmithKline, 814 F.3d at 17; In re Grand Jury
Subpoena Duces Tecum, 731 F.2d 1032, 1037–38 (2d Cir. 1984) (legal advice on employee-
compensation plans, proposed company reorganization, and company sale); Sedco Int’l, S.A. v.
Cory, 683 F.2d 1201, 1203, 1205–06 (8th Cir. 1982) (legal advice on pursuing a business
venture). None of these adjacent business purposes for seeking legal advice transforms the
communications and legal work into something other than legal advice. In the context of the
legal threats that FirstEnergy faced—high-stakes criminal and civil allegations—it will be the
rare company that will not also have business purposes for seeking essential legal advice. The
attorney-client privilege nonetheless plainly applies.

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The district court fared no better when it came to work product. Recall that work-product
protection kicks in when materials were created “because of a party’s . . . anticipation of
litigation.” Roxworthy, 457 F.3d at 594. As the district court saw it, FirstEnergy had shown only
that “employment decisions and business concerns,” not the anticipation of ligation, prompted
the investigations. R.653 at 22.
But that conclusion is possible only if we overlook “the realities of litigation” that
FirstEnergy faced. United States v. Nobles, 422 U.S. 225, 238 (1975). We would have to
overlook that FirstEnergy initiated the investigations after the Householder complaint implicated
FirstEnergy as a key player in a criminal scheme, and after the Department of Justice criminally
subpoenaed FirstEnergy. We would have to overlook that numerous civil lawsuits and multiple
federal and state regulatory actions were filed against FirstEnergy in the following weeks. And
we would have to overlook the claimants’ own concession to the district court that “[o]bviously”
FirstEnergy would not have initiated investigations “but for” legal action against it. R.529 at 8.
This “intensely practical” doctrine, Nobles, 422 U.S. at 238, requires acute attention to “the
circumstances surrounding the documents’ creation,” Roxworthy, 457 F.3d at 595. The work-
product doctrine plainly applies to the civil and criminal litigation crisis FirstEnergy faced.
In making its decision, the district court refused to consider a declaration from
FirstEnergy director James O’Neil describing the investigations and what prompted them.
Because O’Neil swore his declaration “under penalty of perjury” without swearing it “as true
under penalty of perjury,” the district court excluded it as non-compliant with federal law. And
without it, the district court reasoned, FirstEnergy had no case against production of its materials.
The claimants all but abandon this point in their briefing before us—and for two good reasons.
First, the court erred in excluding O’Neil’s declaration. Under 28 U.S.C. § 1746(2), a
party may support a factual claim with a declaration “in writing of [the declarant] which is
subscribed by him, as true under penalty of perjury, and dated, in substantially the following
form:” “I declare . . . under penalty of perjury that the foregoing is true and correct. Executed
on (date).” (emphasis added). O’Neil’s signed and dated declaration stated: “I, James F. O’Neil,
III, hereby declare under penalty of perjury as follows.” R.511-1 at 2. That “substantially” met
§ 1746’s requirements. In the apt words of the Second Circuit: “Although the letter does not

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contain the exact language of [§] 1746 nor state that the contents are ‘true and correct,’ it
substantially complies with these statutory requirements, which is all that [§ 1746] requires.”
LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65–66 (2d Cir. 1999).
O’Neil’s two-word omission—which he attempted to correct once the special master, without
prompting from the claimants, rejected O’Neil’s declaration—is akin to a scrivener’s error. Just
as we would not punish a legislature for making such a mistake, see U.S. Nat’l. Bank of Or. v.
Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462 (1993), we should not punish an affiant for
making such a modest mistake, one that the opposing party did not complain about and one that
in the end did not suffice to render this declaration non-compliant.
Bonds v. Cox does not alter this conclusion. 20 F.3d 697, 702 (6th Cir. 1994). Bonds
held that an undated declaration did not comply with § 1746. But that’s because the undated
declaration lacked any other indicator of when it was made. See id. Not so here when it comes
to accuracy. When someone swears a statement “under . . . penalty of perjury,” that person “is
presumed to tell the truth.” See Guy v. Lexington-Fayette Urb. Cnty. Gov’t, 57 F. App’x 217,
225 (6th Cir. 2003) (quotation omitted); Montgomery v. Ruxton Health Care, IX, LLC, 2006 WL
3746145, at *3 (E.D. Va. Dec. 15, 2006) (“[W]hen a person swears to a statement under penalty
of perjury, it is reasonable to infer that she believes the contents to be true and correct,” even if
the declarant does not literally “state that th[e] contents are ‘true and correct.’”). O’Neil
substantially complied with § 1746.
Second, the attorney-client privilege and work-product doctrine protect First Energy’s
investigative materials with or without the O’Neil declaration. It does not take a company
leader’s insider knowledge to discern that criminal and civil investigations, state and federal
regulatory action, and numerous shareholder lawsuits led FirstEnergy to expect litigation and
seek legal advice. At bottom, as the claimants now seem to recognize, the district court and the
special master mistakenly excluded the O’Neil declaration. At all events, the work-product and
privilege doctrines would have shielded the internal investigations anyway.
The district court also faulted FirstEnergy for failing to submit privilege logs, request in
camera review, or otherwise specify which documents are privileged and why. But in a joint
stipulation submitted to the district court, the parties agreed that no party needed to log “any”

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“[p]rivileged communications, documents, or work product exchanged between” a party and “its
outside counsel” if the material “concern[ed]” the Householder litigation and was “dated after
July 21, 2020,” the day of the Householder complaint. R.295 at 2–3. That understandable
stipulation by the parties, in view of the tsunami of litigation facing the company, did not have a
time limit. Even if that were not the case, FirstEnergy’s decision not to identify any specific
documents as privileged matched the plaintiffs’ broad and undifferentiated request for “all
previously withheld documents,” including those related to the internal investigation. R.489-1 at
33; see Fed. R. Civ. P. 34(b)(1)(A) (A discovery request “must describe with reasonable
particularity each item or category of items to be inspected.”). In the last analysis, the attorney-
client and work-product protections covered the materials that the district court required
FirstEnergy to produce.
III.
That the district court erred in requiring the production of these protected
communications does not by itself justify a writ of mandamus. Mandamus is a “drastic and
extraordinary remedy reserved for really extraordinary causes.” Cheney, 542 U.S. at 380
(quotation omitted). In view of that lofty standard, FirstEnergy must meet three requirements to
obtain the writ: (1) It must have “no other adequate means to attain the relief [it] desires”; (2) it
must show that its right to the issuance of the writ is “clear and indisputable”; and (3) it must
show that the writ is “appropriate under the circumstances.” Id. at 380–81; see John B. v. Goetz,
531 F.3d 448, 457 (6th Cir. 2008).
A.
Alternative means to obtain relief. FirstEnergy has “no other adequate means to attain
the relief [it] desires.” Cheney, 542 U.S. at 380. Consider the three other possibilities for review
and why each one does not suffice as an adequate alternative. The company, to begin, could
have asked the district court to certify the privilege and work-product questions for interlocutory
appeal. See 28 U.S.C. § 1292(b). But FirstEnergy did just that, and the district court denied the
request. R.673.

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Next, it could have defied the district court’s order, potentially prompting a criminal
contempt citation, which it may then immediately appeal. Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100, 111 (2009). But this alternative has its own shortcoming. A district court may
choose either civil or criminal sanctions in its discretion. Had the court opted for a civil
sanction, FirstEnergy would have “no means of review until the perhaps far distant day of final
judgment.” 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice
and Procedure § 3914.23, at 146 (2d ed. 1992). That gamble, in which even a “victory” comes
at the price of a criminal contempt sanction, does not suffice as a reasonable alternative.
Last of all, it could have waited to appeal the district court’s order until a final judgment.
But this path would require FirstEnergy to produce its investigative materials, at which point,
“damage to the attorney-client relationship will have already been done by the disclosure itself.”
In re Lott, 424 F.3d 446, 451 (6th Cir. 2005); In re Kellogg, 756 F.3d 754, 761 (D.C. Cir. 2014)
(describing “the very purpose” of privilege doctrine as preventing “the release of those
confidential documents”). There is no way to unring those disclosure bells.
Clear and indisputable right to relief. An “error of law, standing alone,” does not justify
the writ. In re Parker, 49 F.3d 204, 207 (6th Cir. 1995). The district court’s error must be
“clear” and “beyond the bounds” of its discretion. In re Chimenti, 79 F.3d 534, 540 (6th Cir.
1996). For the reasons explained above, the district court plainly crossed that line when it
departed from “strong and longstanding” privilege and work-product doctrines. Fed. Deposit
Ins. Corp. v. Ernst & Whinney, 921 F.2d 83, 86 (6th Cir. 1990).
Propriety of mandamus relief. Granting the writ also is “appropriate under the
circumstances.” Cheney, 542 U.S. at 381. FirstEnergy understandably and wisely sought
counsel and generated work-product documents in the course of defending itself against an
imposing assortment of civil, regulatory, and criminal investigations and lawsuits. Overused
though the phrase may be, this was surely a bet-the-company setting demanding apex legal
advice. In that setting, the customary expectation is that the resulting conversations and
documents will be protected. See, e.g., Hickman, 329 U.S. at 510. Plus, it’s not just this case
that FirstEnergy has a right to be concerned about. If FirstEnergy releases its investigative
materials to the claimants in this case, it likely will be forced to do the same in other cases—and

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nothing in the district court’s order suggests otherwise. Confirming the point, the Ohio
Consumers’ Counsel, the claimant in the matter before the Public Utilities Commission of Ohio,
has already demanded that FirstEnergy produce its investigatory documents as a result of the
district court’s order. R.644-5 at 3.
Beyond FirstEnergy, the district court’s order promises “substantial uncertainty” for
corporations more broadly, as over forty amici have argued in this case. See Swidler, 524 U.S. at
409; Brief for Corporate Law and Legal Ethics Scholars as Amici Curiae Supporting Petitioner at
27; Brief for 39 Law Firms as Amici Curiae Supporting Petitioner at 3; Brief of Amici Curiae
Attorneys’ Liability Assurance Society Ltd., et al., Supporting Petitioner at 19. That is because
there is “no way to affirm the [d]istrict [c]ourt’s ruling without abandoning” nearly a half century
(since Upjohn) “of jurisprudence concerning the scope of the attorney-client privilege” and
work-product doctrine, In re Lott, 424 F.3d at 456, or without discouraging “full and frank
communication” between companies and their attorneys when investigating their own
wrongdoing, Upjohn, 449 U.S. at 389. Because “predictable and certain” privilege and work-
product standards are essential for FirstEnergy and future litigants facing perilous litigation
consequences, In re Lott, 424 F.3d at 450, mandamus relief is eminently appropriate here.
B.
The claimants’ counterarguments fall short. They start by trying to identify alternative
ways in which FirstEnergy could seek relief, claiming that the U.S. Supreme Court has
established that post-final-judgment appeals “suffice” to “ensure the vitality of the attorney-
client privilege.” Mohawk, 558 U.S. at 109. That means, as they see it, that FirstEnergy and
companies like it must invariably wait for a final judgment to correct such errors. But Mohawk
said more than the claimants let on. While the Court stated that, “generally” speaking, the
standard appeals process suffices, it also emphasized that writs of mandamus “serve as useful
safety valves for promptly correcting serious errors.” Id. at 109–11 (quotation omitted); see also
id. at 112 (“[M]andamus . . . facilitate[s] immediate review of some of the more consequential
attorney-client privilege rulings.”); id. at 114 (“[M]andamus . . . provide[s] adequate protection
to litigants ordered to disclose materials purportedly subject to the attorney-client privilege.”).
The ruling before us—erroneously calling for disclosure of all withheld materials from two

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investigations spawned by a storm of legal and regulatory action by federal, state, and private
actors—is precisely the kind of “serious” and “particularly injurious” discovery ruling designed
for this essential, if narrow, exception to the final-judgment rule. Id. at 110–11.
The claimants suggest that In re Express Scripts, a recent unpublished order, holds that
direct appeal remains an adequate remedy for seriously mistaken denials of attorney-client
protection. No. 25-3006 (6th Cir. June 3, 2025). But that is not what Express Scripts said.
“[M]andamus relief is justified,” it pointed out, “when a discovery order ‘amounts to a . . . clear
abuse of discretion.’” Slip op. at 2 (quoting Mohawk, 558 U.S. at 111). That is this case. What
Express Scripts did, no less importantly, matched what it said. Express Scripts dismissed the
petition because the parties that asserted the privilege could not demonstrate any right to relief
from the district court’s order, much less a clear one. Slip op. at 2–3. In this instance, in marked
contrast, the district court’s errors are plain, and FirstEnergy’s right to relief is plainer still.
Holt-Orsted v. City of Dickson does not change matters either. 641 F.3d 230 (6th Cir.
2011). There, it is true, the court remarked that “[o]nly when the person who asserts a privilege
is a non-litigant will an appeal from the final decision be inadequate.” Id. at 238 (quotation
omitted). But there is a catch. In that case, the court discussed the collateral order doctrine, not
mandamus. Id. at 236. That explains why the court added that, while we “ha[ve] not allowed
immediate review of discovery orders involving claims of privilege under the collateral order
doctrine,” we “instead favor[] mandamus as the appropriate method of review.” Id. Just so here.
The claimants contend that the internal investigations conveyed mere facts, not legal
advice. True, “communications are not protected when an attorney conveys to his client facts
acquired from other persons or sources.” United States v. Sadler, 24 F.4th 515, 557 (6th Cir.
2022) (quotation omitted). True also, just as “a party cannot conceal a fact merely by revealing
it to his lawyer,” a lawyer cannot conceal a fact merely by disclosing it to his client. Upjohn,
449 U.S. at 396 (quotation omitted).
But the instant investigations involved legal advice, and they gathered facts closely
related to that legal analysis. Jones Day and Squire provided “legal analyses, and assessments of
potential criminal and civil liability,” not sterile summaries of FirstEnergy’s involvement in the

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Householder affair. R.511-1 ¶ 17. There is no such thing as legal advice without facts. The
investigating firms, at any rate, did not simply recite facts learned from third parties; they
determined what happened, whether it was lawful, and what civil and criminal liability could
result. See R. 259-5 at 14, 24. They provided, in brief, legal advice.
The claimants fall back on a clutch of waiver arguments. The district court did not
invoke waiver in explaining its order. As a result, it does not support the wide-ranging
production order. But we do not see how waiver could support the order anyway. Voluntarily
disclosing the substance of privileged communications to a third party, sure enough, generally
waives the attorney-client privilege as to those communications. In re King’s Daughters Health
Sys., Inc., 31 F.4th 520, 527 (6th Cir. 2022). And parties likewise generally waive work-product
protection by voluntarily disclosing the substance of protected communications to an adversary.
In re Columbia/HCA Healthcare Corp. Billing Pracs. Litig., 293 F.3d 289, 306 & n.28 (6th Cir.
2002).
But no such waivers occurred here, least of all with respect to all of the communications,
as would be required to uphold this order. The claimants note that FirstEnergy disclosed
portions of the internal investigation in a deferred prosecution agreement and during civil
litigation. While FirstEnergy disclosed some information that also appears in the internal
investigation, most of it was non-privileged, and parties do not waive the attorney-client
privilege by disclosing non-privileged material. See King’s Daughters, 31 F.4th at 527. The
bulk of this overlapping information was already discoverable, and the rest tended to be bare
conclusions from the investigation, not “the substance of the[] attorney’s advice,” In re Grand
Jury Proc. Oct. 12, 1995, 78 F.3d 251, 254 (6th Cir. 1996); see United States v. Collis, 128 F.3d
313, 320 (6th Cir. 1997); In re Qwest Commc’ns Int’l Inc., 450 F.3d 1179, 1185 (10th Cir. 2006).
Divulging those ultimate findings does not waive either protection. In re Grand Jury Proc. Oct.
12, 78 F.3d at 254.
The claimants add that FirstEnergy waived both protections by sharing part of its internal
investigation with PricewaterhouseCoopers, its existing independent auditor. FirstEnergy, it is
true, disclosed thousands of documents to Price Waterhouse. But that does not mean it waived
the attorney-client privilege or work-product protection as to the internal investigations. Again,

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No. 24-3654 In re FirstEnergy Corp. Page 14
the disclosure of non-privileged material never waives the attorney-client privilege. See King’s
Daughters, 31 F.4th at 527. Price Waterhouse’s own memoranda, moreover, indicate that
“responsive documents have been withheld from PwC based on the assertion of attorney-client
or other legal privilege.” R.510 at 19. If FirstEnergy shared non-privileged information, it can
still assert both protections as to privileged materials.
The argument that FirstEnergy waived the attorney-client privilege by disclosing some
materials to Price Waterhouse suffers from another flaw. “[B]ecause the work product privilege
looks to the vitality of the adversary system rather than simply seeking to preserve
confidentiality, it is not automatically waived by the disclosure to a third party.” In re Grand
Jury Subpoena, 220 F.3d 406, 409 (5th Cir. 2000). Only disclosures to an adversary will waive
work-product protection. See In re Columbia, 293 F.3d at 306 & n.28. The ethical rules
governing public accountants like Price Waterhouse forbid them from “disclos[ing] any
confidential client information without the specific consent of the client.” Am. Inst. of Certified
Pub. Accts., Code of Pro. Conduct § 1.700.001.01. And once litigation against the client is
imminent, an independent auditor like Price Waterhouse would be obligated to withdraw,
confirming it could never be an adversary. See United States v. Deloitte LLP, 610 F.3d 129, 140
(D.C. Cir. 2010). It follows that, on this record, the claimants have not established that
FirstEnergy and its auditor are adversaries. Anything divulged to Price Waterhouse would
therefore, at a minimum, remain protected as work product. Cf. New Phoenix Sunrise Corp. v.
C.I.R., 408 F. App’x 908, 919 (6th Cir. 2010).
The claimants point out how rarely this court grants mandamus petitions in privilege or
work-product disputes. That is true, but it has little application to this significant discovery
dispute, in which the district court made substantial departures from bedrock privilege and work-
product principles, some of them barely defended before us.
We grant the petition for mandamus and vacate the district court’s document production
order.

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