Bennett Jones LLP

A recent English decision on privilege has cast doubt on the legal protection provided to lawyers' work product when assisting corporate clients with internal investigations. In The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd, [2017] EWHC 1017 (QB), the English High Court held that external lawyers’ interview notes from an internal corporate fraud investigation were not protected by privilege and had to be disclosed to the investigating government agency.

In 2011, British company Eurasian Natural Resources Corporations Ltd. ("ENRC"), part of a multi-national group of mining and natural resource companies, became the subject of whistleblower allegations relating to its acquisition of mineral assets in Kazakhstan and Africa. After two years of internal investigations and self-reporting to the Director of the Serious Fraud Office (the "SFO", the British agency responsible for the investigation and prosecution of crimes involving serious fraud and domestic and overseas bribery and corruption), ENRC dismissed its then solicitors, Dechert LLP, and the SFO commenced a formal criminal investigation into the company's activities. 

The documents at issue were created by Dechert LLP and forensic accountants retained by ENRC in its internal investigations from 2011 to 2013. Most notably, the SFO sought production of the notes prepared by Dechert LLP lawyers from more than 85 interviews they conducted with current and former ENRC officers and employees, its subsidiary companies, suppliers, and other third-parties about the events under investigation. ENRC asserted both legal advice privilege (also known as lawyer-client privilege in Canadian law) and litigation privilege over their former lawyers' notes.

The Court rejected both bases of privilege and ordered that the lawyers' notes be disclosed to the SFO. 

Like lawyer-client privilege in Canada, legal advice privilege protects all communications between the lawyer and client made in confidence in connection with the provision of legal advice. In this case, the Court held that the privilege failed on two counts: (1) the employees and third-parties being interviewed were not the "client"; and (2) notes created from those interviews would not disclose legal advice being provided to ENRC. According to the Court, a verbatim note about what a lawyer was told by an ENRC employee or potential witness would not, without more, be protected. Thus, the fact that a lawyer interviewed the witness in order to provide legal advice to his or her client was insufficient to attract lawyer-client privilege. 

On the claim of litigation privilege, which protects documents prepared for the dominant purpose of preparing for current or anticipated litigation, the English Court held that there must be a "real likelihood" of "adversarial litigation" (and not merely an investigation) before the privilege will attach.  A current or anticipated criminal or regulatory investigation is not enough, even where that investigation could lead to a prosecution. According to the Court, prosecution would only have become a real prospect if ENRC had discovered some truth to the allegations being investigated. On the evidence, the Court held that ENRC failed to establish the prospect of criminal proceedings was anything more than speculative at the time.

Further, the Court found that the lawyers' notes were not created for the dominant purpose of an anticipated criminal prosecution or to provide ENRC with legal advice in the context of anticipated adversarial proceedings. In the words of the Court, "the information was not being gathered to form part of a defence brief." Rather, the Court found that the primary purpose of ENRC's internal investigations at the time was fact-finding, preparing for an investigation, and addressing compliance issues. The lawyers, according to the Court, were engaged as "information gatherers rather than legal advisors."

Whether under English or Canadian law, privilege does not attach to facts discovered in an investigation. However, the scope of protection for work product created in an early internal investigation remains controversial. While this decision appears to have turned largely on the evidence led by ENRC to support its claim of privilege, the English Court has taken a surprisingly narrow approach to the scope of lawyer-client and litigation privilege where external lawyers are involved in early internal investigations for their clients. By placing a high evidentiary burden on the party claiming privilege and reducing the role of legal counsel to an "information gatherer", the English Court has significantly limited the scope of privilege and exposed legal work product to disclosure. If adopted broadly, this approach would likely cause a chilling effect on internal investigations and self-reporting practices, at a time when corporations often have a legal obligation to engage those processes.   

ENRC is seeking to appeal the English High Court's decision. While not binding in Canada, the decision serves as an important reminder that the involvement of legal counsel in the creation of records in internal investigations does not guarantee protection from disclosure in the context of future litigation, whether civil, regulatory, or criminal. Corporations commencing a significant internal investigation or regulatory self-reporting practices, which could lead to litigation or a regulatory or criminal prosecution, should seek legal advice early and consider and formalize the objectives and scope of such investigation. Failure to do so will increase the exposure to the corporation at a time when risk containment is often a primary objective.