“The law as it stands today is settled. Privilege does not apply to first interview notes.” This is the view expressed by the High Court (Holyrode LJ and Green J) when considering a claim for judicial review of a decision by the SFO not to pursue a company, XYZ Ltd, for breach of the duty of cooperation under a deferred prosecution agreement on the basis that the company refused to provide external lawyers’ notes of initial interviews with then-current employees (some of whom are now the defendants in criminal proceedings, and one of whom had brought the judicial review proceedings in an effort to obtain a copy of the interview notes).
This view reflects the current attitude of the English Courts to interview notes where litigation privilege does not apply and the interviewee is not the ‘client’ of the interviewing lawyer. The Court appears to have considered the fact that the purpose of the interviews was to enable XYZ Ltd to decide whether or not to self-report to the SFO, rather than to support a decision that had already been taken, to be an important distinction to consider in this analysis.
During its investigation, the SFO considered it sufficient to rely on (and disclose to the defendants in the criminal proceedings) the contents of oral proffers given by the company’s lawyers – which the SFO recorded and transcribed – through which, for instance, 15 hours of interviews with one individual were summarised into a 5-page proffer. The SFO requested the lawyers’ interview notes, but this was refused on the grounds of privilege. Although the SFO did not accept the privilege arguments, it did not take the matter further as it was content to rely on the oral proffers and it considered that the privilege argument was “not obviously wrong”. Following the DPA between the company and the SFO, which required ongoing full cooperation by the company, the individual defendant raised the issue again, but the SFO did not seek to rely on the terms of the DPA to require the company to produce the interview notes.
In correspondence, the company sought to distinguish this case from the facts addressed by the court in the RBS Rights Litigation and ENRC cases (where interview notes in question were found not to be privileged). However, the court was unconvinced and concluded that the SFO had erred in its duty to assess claims for privilege properly. The SFO was also criticised for failing to consider whether the oral proffers amounted to a waiver or whether it could insist on a waiver of privilege given the company’s duty under the DPA to cooperate.
The High Court ultimately dismissed the claim for judicial review since the claimant had not exhausted all available remedies before the Crown Court. However, in the 40-page judgment, the court also made plain its view that the SFO had not complied with its duty, as a prosecuting authority, to take further steps to obtain the interview notes so that they may be disclosed in the criminal proceedings against the individual in accordance with the defendant’s Article 6 right to a fair trial.
In response to this case, the SFO will likely take a more robust position towards companies who claim privilege over first interview notes and is unlikely to agree to accommodate alternative arrangements, such as oral proffers. Moreover, the SFO may view claims of privilegewhich do not have a robust legal basis as a sign of non-cooperation, which could affect a company’s ability to obtain (or retain) a DPA.
It is important to note that this case concerned whether the SFO had taken the correct approach when faced with a privilege claim over interview notes and the court was not required to review the substance of the company’s specific claims to privilege. Notwithstanding the court’s broad view quoted at the start of this post, whether or not a document is protected by privilege is a question of fact to be assessed on a case-by-case basis and will ultimately come down to its contents and the evidence surrounding the circumstances in which that document was created. The judgment emphasises the importance of companies considering, at the time interviews take place, whether records of them are likely to be protected by litigation or legal advice privilege and how those records should be made in the light of need to balance the risks of creating unhelpful and unprivileged documents against those of failing to ensure an adequate record is made of important evidence so that a proper investigation can be conducted.