Internal investigations conducted by an organization’s outside counsel are an increasingly important tool for reviewing potential wrongdoing by officers or employees, assessing potential litigation positions and strategies, and examining regulatory risks. Given these essential tasks, an organization retaining outside counsel to conduct an investigation must take precautions to ensure that facts uncovered during an investigation, which are usually sensitive and could expose the organization to risk, remain internal and confidential. This includes protecting information gathered through the investigatory process under the attorney-client privilege.
And with businesses participating in increasingly global marketplaces, internal investigators would be remiss to solely rely upon privilege rules established in the United States, as legal developments in other jurisdictions could also affect the application of privilege over information obtained abroad. In fact, as discussed below, a recent case from the United Kingdom reinforces the need to be cognizant of local approaches to privilege while conducting internal investigations.