Regulators in the U.K. and the U.S. are increasingly placing pressure on companies to provide materials considered to be protected by legal privilege. The authorities have focused, in particular, on witness interview memoranda prepared by outside counsel conducting an internal investigation into allegations of wrongdoing. In recent years, in the U.K., the scope of the legal privileges protecting these materials from disclosure has been challenged, curtailing the ability of corporates to resist disclosure of sensitive investigative materials to regulators and to private litigants. This has created a serious divergence between U.K. and U.S. law as to the scope of the legal protections afforded to those materials. See our Client Alerts on the “RBS Rights Issue Litigation” and “SFO v ENRC.”
However, in an important judgment delivered on 5 September 2018 (the “ENRC Appeal Judgment”), the Court of Appeal has taken a substantial step in the direction of reconfirming the application of legal privilege in the context of internal investigations, and thereby significantly reducing – but not eliminating – the divergence in the law of privilege between the U.K. and U.S.
