On 15 May 2015, the Texas Supreme Court overturned a Texas Court of Appeal’s decision that Shell’s internal investigation report to the United States Department of Justice (“DoJ”), regarding possible violations of the FCPA by one of its contractors, was only a conditionally privileged communication. This would have permitted a former Shell employee to use the report in a defamation action against Shell for alleged defamatory statements about him included in the report provided to the DoJ. The Texas Supreme Court determined “… when Shell provided its internal investigation report to the DoJ, Shell was a target of the DoJ’s investigation and the information in the report related to the DoJ’s inquiry. The evidence is also conclusive that when it provided the report, Shell acted with serious contemplation of the possibility that it might be prosecuted.” The Texas Supreme Court concluded that the provision by Shell of its report to the DoJ was an absolutely privileged communication.
This development by a state supreme court in the United States sits alongside moves in the UK by the SFO towards a hardline approach by increasingly challenging corporates’ assertions of certain communications being protected by the cloak of privilege.