On 6 September 2018, following hot on the heels of the important decision on the application of litigation privilege in internal investigations in ENRC v Serious Fraud Office (read our recent summary here), the Administrative Court handed down its judgment in R (KBR Inc.) v Serious Fraud Office concerning the Serious Fraud Office’s (SFO) powers to compel the production of documents held outside of the United Kingdom by companies incorporated outside of the United Kingdom. The Administrative Court held that where there is a “sufficient connection” to the United Kingdom, the SFO can compel the production of such documents. Continue reading
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
Following the decisions in The RBS Rights Issue Litigation and Serious Fraud Office v Eurasian Natural Resources Corporation Limited (“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 (“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
In today’s world, data breaches are a regular occurrence. The size and scale varies, and they have different causes, but those matters are irrelevant if you are a data subject affected – you just want the situation resolved and compensation for any losses you suffer. Who should be responsible for those breaches? Where a company has not taken sufficient steps to safeguard personal data, the answer is obvious. But what about where a rogue employee leaks personal data with the deliberate intention of harming his employer? The English High Court has recently decided that even in that instance, the employer is liable to data subjects. Although there is no specific case on this point, we believe that a similar outcome would be reached in an action under US law. Continue reading
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  EWHC 1017 (QB) (hereinafter “ENRC”); The RBS Rights Issue Litigation  EWHC 3161 (Ch) (hereinafter “RBS”). Continue reading