Protecting Litigation Privilege In Corporate Criminal And Regulatory Investigations

In Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd, the UK High Court considered the Serious Fraud Office's (SFO) request for a declaration that litigation privilege did not protect documents generated as part of the defendant corporation's internal investigation. The High Court granted the SFO's request, compelling the defendant corporation to turn over findings on its employees offering bribes to foreign officials. In granting the request, the High Court held that the corporation could claim litigation privilege only if the corporation was aware of evidence that could support a criminal prosecution. Unless the corporation had this level of awareness, proceedings were not effectively "contemplated" to support litigation privilege. While the corporation faced a criminal investigation, this alone did not justify litigation privilege.