While U.K. prosecutors’ ongoing challenge to the assertion of privilege in the corporate investigations context is hardly breaking news, the U.K. courts’ attack on it is. In 2014, the U.K.’s Serious Fraud Office (SFO) issued its Deferred Prosecution Agreement Code of Practice, which measures a company’s cooperation by its willingness to disclose witness accounts and other documents developed during an internal investigation. The SFO followed up by cautioning companies not to claim privilege over records created during an internal investigation, with its head vowing to “bring to heel” companies “whose lawyers obstruct[] investigations by hiding behind the shield of legal professional privilege.” Recently, U.K. courts have joined the fray, placing limits on privilege law that have troubling implications for protecting the communications of lawyers—including U.S. lawyers—conducting internal investigations in the U.K. and elsewhere.
On Dec. 8, 2016, the English High Court’s decision in In re RBS Rights Issue Litigation [2016] EWHC 3161 (Ch), concluded that the English legal advice privilege does not extend to notes, transcripts, or records of interviews (interview notes) between a company’s lawyers conducting an internal investigation and most of its current and former employees.
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