Top Tips - Maintaining Privilege in Investigations

Investigations are an all too frequent reality for many Irish businesses. Typically these investigations are fact finding exercises that generate significant amounts of highly sensitive material.

Increased regulatory oversight into allegations of fraud, bribery and corruption has meant that regulators are now requesting companies to provide documentation generated during these internal investigations.

It is important that companies actively consider the best way to maintain privilege over this documentation at the outset of an investigation.
  
To assist you manage this process effectively, we have identified below some of the key best practices to bear in mind: 

• Engage a lawyer early and identify the client 
  Legal advice privilege protects communications between a solicitor and their client. Consideration should be given as to who is the client and this should be recorded in writing.  
  Mark all correspondence as “Legally Privileged & Confidential”. Although this does not guarantee that a document will be held as privileged, it does evidence the intention of the parties at that time.

• Consider whether an investigation is reasonably apprehended[1]
  This may allow a company to maintain litigation privilege.  The key benefit of this privilege over legal advice privilege is that it will also cover communications with third parties.

• Record the reasons for the investigation 
  This will assist in highlighting the intention of the parties at the time the investigation commenced; particularly if the regulator seeks to maintain that an investigation could not have been reasonably apprehended at that time. If a number of reasons exist for the investigation, record all of them, or if the purpose of the investigation changes as matters progress, this should also be documented.
  
  
• Consider a “Common Interest Privilege Agreement”
  If documents are to be shared with a third party who has a common interest in the outcome of the litigation or investigation, a common interest privilege agreement should be considered in order to maintain legal professional privilege.  Documents passing to other companies within a group or with connected companies where those companies have an interest in the advice or litigation concerned, may be covered by such agreements. 

For further information on regulatory investigations, contact Jon Legorburu, Seán O’Donnell or Niamh O'Regan from the ByrneWallace Corporate Crime and Regulatory Investigations Team.

[1] This was recently considered in the UK Court of Appeal case of The Serious Fraud Office v Eurasian Natural Resources Corporation [2018] EWCA Civil Division 2006