By Matthew Getz, Scott Wilson, and Prateek Swaika
In a major recalibration of England’s laws regarding litigation privilege, England’s Court of Appeal has recently ruled in The Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation Limited (2018) EWCA Civ 2006, that interview memoranda and forensic accountant reports prepared for a company conducting an internal investigation are protected by litigation privilege.
Earlier English judgments, including particularly the lower court’s judgment—which has now been overruled—indicated that such memos and reports would not generally be privileged if they were created before the prosecutor decided to initiate a prosecution or formal criminal investigation. This ruling reverses those decisions, making it easier for companies to protect their written materials and investigate potential wrongdoing comprehensively and from an early stage.
Important statements of principle from the English Court suggest that companies may gain the protection of privilege over investigative materials even if they are created before a prosecutor is aware of the issues being investigated, as long as the company honestly believes, given the gravity of the issues, that there is a reasonable chance of prosecution. The court also established that documents created for the purpose of avoiding prosecution will be protected by privilege.
This ruling will have a particular impact on interview memos, the status of which had been unclear in English law until recently.
From a U.S. point of view, the ruling brings English litigation privilege more in line with the U.S. attorney work-product doctrine, at least in the context of internal investigations. However, companies facing cross-border government investigations must nonetheless take care to avoid waiving these protections inadvertently through their cooperation with one or other set of prosecutors. More
Reproduced with permission. Published September 25, 2018. Copyright 2018 The Bureau of National Affairs, Inc. 800-
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