UK Court Holds Counsel's Interview Notes During Internal Investigation Are Not Privileged

In a decision released on May 8, 2017, London's High Court held that interview notes and working papers prepared by a company's external counsel as part of an internal investigation into allegations of corruption were not protected by privilege. The decision is both surprising and of concern to corporations who may find themselves subject to potential regulatory investigation.

The documents, generated during investigations undertaken between 2011 and 2013 by solicitors and forensic accountants of Eurasian Natural Resources Corporation (ENRC), included notes from interviews of 85 individuals undertaken by ENRC's counsel. ENRC claimed these documents were subject to litigation privilege (which applies to documents prepared for the dominant purpose of preparing for anticipated or pending litigation) and legal advice privilege (the UK equivalent to Canadian solicitor-client privilege, which applies to communications between lawyers and clients for the purpose of seeking