A Safe(r) Space: Litigation Privilege & Regulatory Investigations

The decision of the English Court of Appeal earlier this week in the case of Serious Fraud Office v Eurasian Natural Resources upholds and strengthens the ability of firms subject to criminal investigation to rely on litigation privilege withhold details of their own internal inquiries from the prosecutor. It also prompts an important question about whether this protection also applies to firms subject to other regulatory investigations.

Background

A whistle-blower had alerted Eurasian to allegations of corruption, fraud and bribery within its group and it had undertaken investigations. The Serious Fraud Office (SFO) had investigated, with a view to pursuing a possible prosecution. It issued notices compelling the production of documents, including statements and evidence provided by Eurasian's employees and officers; reviews of books and records by forensic accountants; factual evidence; and documents containing legal advice. The company asserted that all