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 →