In connection with ongoing criminal litigation, the U.S. District Court for the District of Columbia authorized the DOJ to review documents that the DOJ alleged had been intentionally withheld by KKR from government antitrust regulators and enforcers. Notably, among the documents KKR was ordered to provide to the DOJ were communications between the PE firm and its lawyers at Kirkland & Ellis. For many in-house counsel and compliance officers at PE sponsors, the DOJ’s ability to obtain a court order permitting review of otherwise confidential, attorney-client privileged communications was a moment for pause. The court order highlights the risks posed when the DOJ can credibly argue that attorney communications and work product should be produced under the crime-fraud exception to the attorney-client privilege doctrine. The DOJ’s argument may be particularly compelling upon proof that certain documents likely reveal evidence of a crime, or when documents required to be produced were withheld intentionally as part of an alleged scheme to defraud either the legal process or the court itself. In a guest article, Olshan Frome Wolosky partner Derrelle M. Janey details relevant elements of the ongoing KKR investigation; the operative tenets of the crime-fraud exception to the attorney-client privilege; and the potential implications of the court order for M&A due diligence, fund governance, regulatory compliance and fiduciary obligation management. See “Understanding the Fiduciary Exception to Attorney-Client Privilege” (Oct. 19, 2023).