Can you imagine conducting an internal investigation interview without taking notes of the interview? Well, if you want to preserve privilege in a cross-border investigation that could implicate U.K. authorities, you may very well have to.
It is well-known that investigation counsel prefers to maintain both attorney-client and work product privilege over all information obtained during an internal investigation. This preference is rooted in the U.S. Supreme Court’s decision in Upjohn v. United States, 449 U.S. 383 (1981), which permits company counsel to conduct investigative interviews under the cloak of the attorney-client privilege because counsel is obtaining information on behalf of the client company to provide legal advice to that client company. In addition, in the United States, witness interview notes are generally regarded as work-product privilege because they may contain the attorney’s mental impressions made in anticipation of litigation, including counsel’s assessment of the witness’s credibility, selection of facts that may be important, and thought processes, among other things. Indeed, careful counsel often ensure that their interview notes are not just a full verbatim recitation of what the witness says because facts are generally not afforded work product protection. It is the attorney’s mental impressions intertwined in the notes that protect disclosure of the notes. Thus, under these circumstances, company counsel (both internal and external) readily claim attorney-client privilege over information obtained during the interviews, and attorney work product privilege over the interview notes.
Not so in the United Kingdom. In the case of R (on the Application of AL) v. the Serious Fraud Office (2018) EWHC 856 (identities of the parties were sealed by the court), the High Court reiterated that counsel interview notes from an internal investigation are not privileged. At issue in that case was whether AL, an employee of XYZ Corporation who was being prosecuted by the U.K.’s Serious Fraud Office (SFO), should have access to interview notes from an internal investigation conducted by XYZ’s counsel. XYZ had declined to produce the interview notes to the SFO, and the SFO took no action to force the production of the interview notes; rather, the SFO relied upon oral summaries of the witness interviews provided by XYZ’s counsel. The SFO and XYZ eventually entered into a deferred prosecution agreement (DPA) by which XYZ would continue to cooperate with the SFO, but be spared from prosecution as long as it met the terms of the DPA. The individual employee wanted a copy of the interview notes to examine as part of the defense. While prior U.K. law held that internal investigation notes were not privileged, the High Court went further in this case by admonishing the U.K government authorities for not affirmatively obtaining the interview notes, not challenging the claim of privilege by XYZ, and failing to find that the non-disclosure of the notes violated the cooperation terms of the DPA. The High Court stressed that, “[T]he law as it stands today is settled. Privilege does not apply to first interview notes.”
So what is an internal investigator to do in cases implicating U.K. authorities?
First, it appears that one of the issues in the XYZ case was lack of clarity as to the purpose of the investigation – specifically, was it done in anticipation of litigation (which would strengthen the argument for privilege), or for the purpose of deciding whether self-disclosure was necessary to the SFO (weakening the argument for privilege)? Documenting clearly and early on that the investigation is being conducted in anticipation of litigation (such as in the engagement letter and at the top of the interview notes) would benefit counsel facing privilege challenges to their notes.
A second issue raised by the High Court’s decision in AL is its suggestion that any allegedly privileged material could easily be redacted from the interview notes, leaving only the factual information obtained from the witness. Thus, if the attorney’s mental impressions are so intertwined with the witness’s statement such that they cannot be separated, that may protect the notes from disclosure.
Third, the AL case held that counsel’s oral provision of summaries of witness interviews to the government may constitute a waiver over all interview notes. Among U.S. counsel, oral summaries of witness interviews are a common means by which company counsel seek to cooperate with the government by disclosing information, not provide attorney-generated materials, and purportedly still maintain the privilege.
Notably, however, at least one federal district court in the United States has reached a similar conclusion in the context of an investigation by U.S. authorities. SEC v. Herrera, et al., 324 F.R.D. 258 (S.D. Fl. 2017) (finding that oral summaries of interviews were the functional equivalent of disclosing written witness interview memoranda). Whether this decision is followed by other U.S. courts remains to be seen (and would certainly upend long-standing practice among counsel conducting internal investigations). Nevertheless, in the context of U.K. investigations, skipping the oral presentation, or at least excluding summaries of interviews, is the most conservative route to safeguarding privilege over interview notes.
As a last resort, counsel may refrain from taking detailed notes, or any notes at all. This is likely impracticable and frustrating to most internal investigators, who conduct numerous witness interviews during an investigation and need to take notes to accurately document each witness’s version of the events.
If one of the goals of the investigation is to cooperate with U.K. government authorities in the hopes of receiving cooperation credit, the best practice may be to simply assume that counsel’s interview notes will be subject to disclosure. This is tough for many U.S. lawyers to swallow. But, in the context of investigations by U.K. authorities, this may become standard practice. As internal investigations become more global and move beyond the Foreign Corrupt Practices Act to cyber security, environmental, antitrust, and global securities and trading issues, it is more likely that the authorities of multiple jurisdictions, including the U.K., will be involved. Thus, counsel would be wise from the outset to operate under the premise that counsel’s interview notes will be subject to disclosure.