Privilege in the spotlight...again

Legal professional privilege (LPP) has once again been in the spotlight in Europe, with three decisions in the UK and Germany in the last six months. These cases further emphasise the differing LPP rules between jurisdictions, some of which protect broader categories of documents than others. Those differences create risks in the context of materials generated during multijurisdictional investigations and litigation (such as interview notes), which could be subject to disclosure obligations in some jurisdictions but not others.

In the UK, the decision in late 2016 in The RBS Rights Issue Litigation restated the relatively narrow concept of the “client” for legal advice privilege (one of the two forms of LPP under English law). The court held that notes taken in the context of internal investigations led by US counsel in response to whistleblower allegations and US SEC subpoenas that RBS had received were not privileged. The individuals being interviewed were not the client, nor could the notes be said to qualify for protection as lawyers’ working papers as they did not betray the “trend of legal advice” given.

The UK High Court then issued another significant decision on LPP, this time focusing primarily on the other form of LPP under English law – litigation privilege (Serious Fraud Office v Eurasian Natural Resources Corporation). The SFO, which is currently investigating ENRC, challenged the company’s claims that certain documents requested by the SFO – including interview notes produced by external lawyers – could be withheld because they were protected by LPP. Significantly, the court held: (i) a criminal investigation by the SFO should not be treated as adversarial litigation for the purpose of litigation privilege; and (ii) although litigation privilege  applies to documents prepared for the sole or dominant purpose of conducting litigation, it does not apply to documents prepared to avoid litigation. A link to our client briefing on this decision can be found here. We are continuing to monitor this case, as we understand that ENRC plans to appeal.

Finally, a Germany regional court has reportedly dismissed (in an as-yet unpublished decision) Jones Day’s challenges to a March 2017 raid led by German prosecutors, through which prosecutors seized client-related materials in Germany from the US-based law firm. The parties are appealing this decision.

These decisions highlight the importance of considering at the start of any investigation its potential geographical scope, and how any differences in the rules of LPP between the relevant jurisdictions might affect the way the investigation is conducted and co-ordinated.