Category Archives: Attorney-Client Privilege

Banking Regulators’ Examination Authority Does Not Override Attorney-Client Privilege

by Cleary Gottlieb Steen & Hamilton LLP, Covington & Burling LLP, DavisPolk, Debevoise & Plimpton, Simpson Thacher & Bartlett LLP, Sullivan & Cromwell LLP, and Wilmer Cutler Pickering Hale and Dorr LLP

MEMORANDUM[1]

RE: Bank Regulators’ Legal Authority to Compel the Production of Material That Is Protected by Attorney-Client Privilege

I. Introduction

The attorney-client privilege (the “Privilege”) is deeply enshrined in the common law.[2] In protecting the confidentiality of communications between lawyers and their clients, the Privilege both bars the admission of such communications as evidence in legal proceedings and insulates the communications from compelled disclosure by government authorities. Accordingly, absent an explicit exception, neither courts nor government authorities may require a client or the client’s lawyer to produce or reveal privileged information. Continue reading

English High Court Considers Status of Internal Investigation Interview Notes

by Karolos Seeger, Andrew Lee, and Robin Lööf

In R (AL) v Serious Fraud Office,[1] the English High Court considered the SFO’s obligations to individuals prosecuted following the deferred prosecution agreement (“DPA”) in July 2016 with a company anonymised as “XYZ Ltd”. The Court’s decision is likely to force the SFO to adopt a much more aggressive approach in relation to company counsel’s notes of interviews conducted during a company’s internal investigation. In particular, when those interview notes are potentially relevant to the defences of individuals being prosecuted, this judgment is likely to lead to the SFO putting further pressure on companies to produce the notes, through court proceedings if necessary. We analyse these and other issues covered by the judgment below. Continue reading

The Clash of Legal Cultures in the Brave New World of International Law Enforcement

by Peter B. Pope, Nancy C. Jacobson, and Kelly Hagedorn

Defense lawyers all around the world have heard loud and clear that prosecutors and police agencies have announced a new age of international cooperation.  Prosecutors from one country have been posted to the offices of another.  Agents from nations around the world now sit at desks next to each other in central locations like London.  Global resolutions of big cases are being announced by enforcers in multiple jurisdictions.  One of the main subject-matter focuses of these joint cases has been anti-corruption – namely the Foreign Corrupt Practices Act in the United States and the Bribery Act in the United Kingdom. Continue reading

Recent Decision Finds Waiver Based on “Oral Downloads” to the SEC

by Brad S. Karp, Jessica S. Carey, Andrew J. Ehrlich, Roberto Finzi, Michael E. Gertzman, Michele HirshmanDaniel J. Kramer, Lorin L. Reisner, Richard A. Rosen, Audra J. Soloway, Richard C. Tarlowe, Andrew D. Reich, and Joseph Delich

A federal magistrate judge in the Southern District of Florida recently ruled that a law firm had waived work product protection over notes and memoranda of witness interviews when it provided “oral downloads” of those interviews to the Securities and Exchange Commission (“SEC”).

In a December 5, 2017 opinion, SEC Herrera, No. 17-cv-20301 (S.D. Fla. Dec. 5, 2017), Magistrate Judge Jonathan Goodman indicated that he was “not convinced” that “there is a meaningful distinction between the actual production of a witness interview note or memo and providing the same or similar information orally.”[1]

The opinion serves as an important reminder of the risks of waiver—and the need to take steps to minimize those risks—when disclosing information to a government agency. Continue reading

English Litigation Privilege in Internal Investigations: Not Quite Dead Yet?

by Kelly Hagedorn

Following the decisions in The RBS Rights Issue Litigation[1] and Serious Fraud Office v Eurasian Natural Resources Corporation Limited[2] (“ENRC”), it was thought that the prospect of claiming legal professional privilege in English proceedings over interview memoranda generated during internal investigations was slim (see our client alert on those two cases (PDF: 172 KB)).  However, a recent decision of the English High Court in Bilta (UK) Limited and Others v (1) Royal Bank of Scotland Plc (2) Mercuria Energy Europe Trading Limited[3] (“Bilta”) has refused the disclosure of interview memoranda on the basis of litigation privilege, providing a glimmer of hope for corporates who seek to protect such documents from disclosure. Continue reading

The Growing Danger to Privilege in Investigations

 by Peter Pope, Kelly Hagedorn, Katie Gibbons and Tracey Lattimer

More than three decades ago, the U.S. Supreme Court held that memoranda and notes of interviews that lawyers conduct of a corporate client’s employees are generally protected from disclosure by both the attorney-client privilege and the attorney work-product doctrine.  See Upjohn co. v. United States, 499 U.S. 383 (1981).

In two recent cases, the English High Court of Justice ruled the opposite way under English law, holding that notes and interview memoranda created in internal investigations enjoyed no privilege protection at all.  Instead, both English judgments ordered the lawyers’ notes and interview memoranda to be turned over – in one instance to prosecutors and in another to private litigants.  See Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB) (hereinafter “ENRC”); The RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) (hereinafter “RBS”). Continue reading

English High Court Rejects Claims of Privilege Over Internal Investigation Interview Notes

by Karolos Seeger, Alex Parker and Andrew Lee

Overview

In a judgment last week, the English High Court ruled that notes, transcripts and records of interviews prepared by lawyers during an internal investigation are not covered by legal advice privilege.  While the decision may be appealed (RBS has indicated that it intends to seek permission to appeal), it potentially has important implications for companies and their lawyers when internal interviews and investigations are being conducted, even when external counsel are retained. Continue reading