January 06, 2021 Feature

Attorney-Client Privilege Challenges in International Investigations

Work-product and privilege protections can break down due to differences between U.S. and foreign laws.

Francesca Fulchignoni

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American litigators expect to claim the attorney-client communication privilege to shield from discovery information obtained from their clients or, in the representation of a corporation, from interviews of the company’s executives. Litigators also expect to claim the work-product protection over the records they create in the course of preparing their clients for litigation.

But as firm as those expectations may be, they are not universally shared, especially abroad, but sometimes at home too.

First, challenges to the work-product protection are widespread. Consider the forced discovery of interview memoranda in the United Kingdom in the context of Serious Fraud Office investigations of corporations. See Sunil Harjani’s article in the Fall 2018 issue of Litigation, “Privilege and Interview Notes in Cross-Border Investigations.” Harjani described investigation counsel’s preference in maintaining both the attorney-client communication privilege and the work-product protection over “all information obtained” and challenges to the protection in the context of internal investigations, but the same can now be said in the context of cross-border criminal and regulatory investigations.

Illustration by Sawsan Chalabi.

Illustration by Sawsan Chalabi.

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