On the other side of the pond, the High Court in London on 9 May 2017 sided with the Serious Fraud Office (SFO) in ruling that certain documents created by the company and its external counsel during an internal investigation were not covered by the litigation or legal advice privileges under English law. See Serious Fraud Office v. Eurasian Natural Resources Corporation (ENRC),  EWHC 1017 (QB).1 The ruling, which is currently subject to appeal, demonstrates a significant deviation from U.S. law which, under Upjohn Company v. United States, 449 U.S. 383 (1981), recognizes attorney-client privilege protection over communications between all employees and the corporation's attorneys in the investigation context.
The case turns heavily on its facts, and the history of ENRC's appearance before the SFO in this matter. Nonetheless, as a general observation, compared to the approach taken in the US, the opinion confirms that English law is more limited in its privilege protections afforded to documents produced in an internal investigation. For example, in order for a corporation to successfully assert litigation privilege over such documents, a corporation will likely need to demonstrate (e.g., through a showing of board minutes) that it reasonably contemplated criminal prosecution at the time the internal investigation was undertaken.
The ENRC case follows hot on the heels of the High Court's decision in January 2017 in the RBS Rights Issue Litigation ( EWHC 3161 (Ch)). That case addressed the applicability of legal advice privilege in interview notes produced during internal investigations. The court held, on the facts, that the legal advice privilege did not attach to the notes because the interviewees were not within the limited group of company employees that could be considered to be the 'client' for the purpose of the privilege.
These recent High Court rulings in the UK present significant ramifications for companies and their counsel engaged in cross border investigations, including those in the A&D industry. With such divergent privilege rules applied in the US and the UK (and elsewhere), it is important to seek the assistance of local counsel in all implicated jurisdictions at the outset and throughout any internal investigation, to understand which standards will apply to the particular facts and documents, and to make decisions throughout the investigation to best maintain privilege.