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ous reasons, the ENRC I decision was significant in the An American Lawyer in . But, as the National Association of Criminal Defense Lawyers (“NACDL”) recognized, the Queen Elizabeth’s Court: decision had implications in the United States, too. Disclosure of these documents in the United Kingdom How NACDL Highlighted the International — even compelled disclosure — could result in waiver Consequences of an English Court Case of work-product immunity protections in the United States. Given the frequency of cooperation between the SFO and the U.S. Department of Justice, that risk was neither theoretical nor trivial. When Eurasian Natural Resources Corp. (“ENRC”) appealed the ’s decision to the U.K. Court of Appeal, NACDL sought to ensure that n May 2017, the U.K. High Court of Justice, Queen’s the Court of Appeal understood the international Bench Division, handed down a decision that shook implications of the High Court’s decision. This article Ithe white-collar criminal defense bar: Attorney work tells that story. papers, including witness interview memoranda, were not protected by the “litigation privilege” under U.K. law. The Common Origins of Litigation The High Court’s decision in Eurasian Natural Resources Privilege and Work-Product Immunity Corp. v. Director of the Serious Fraud Office (“ENRC I”) The United States and the United Kingdom share thus held that a governmental law enforcement agency a “union of mind and purpose”1 that is nowhere more like the Serious Fraud Office (“SFO”) — which investi- evident than in the legal systems of the two nations. gates and prosecutes complex fraud, bribery, and cor- Not only do the legal systems of the United States and ruption — could compel disclosure of these materials. the United Kingdom share the same historical roots The decision threatened to fundamentally alter and common law approach, but the law of the United the approach of attorneys tasked with conducting Kingdom has left a lasting imprint on the American internal investigations into suspected corporate legal system — even to this day. As Justice Breyer has wrongdoing. With their work papers and other materi- explained, the U.S. Supreme Court “has long consid- al potentially discoverable by U.K. law enforcement, ered as relevant and informative the way in which for- attorneys conducting internal investigations would eign courts have applied standards roughly compara- certainly think hard about the scope of any investiga- ble to our own constitutional standards in roughly tion and the extent to which they reduced to paper comparable circumstances” — particularly opinions their investigative summaries and findings. For obvi- from the nations of the Commonwealth.2 Indeed, the

BY STEVEN F. MOLO, ERIC R. NITZ, AND EKTA R. DHARIA

22 NACDL.ORG THE CHAMPION Justices of the U.S. Supreme Court that he was aware of circumstances ENRC’s board of directors routinely consider legal sources from that rendered litigation between him- retained counsel and initiated an the United Kingdom, including self and a particular person or class of internal investigation into these allega- Blackstone’s Commentaries, U.K. persons a real likelihood rather than a tions.26 ENRC also hired a forensic statutes, and U.K. court decisions.3 mere possibility.”14 Second, the com- accounting firm to conduct a books- In the past three terms, the U.S. munication must be “made for the and-records review.27 Early in the Supreme Court has cited or discussed sole or dominant purpose of conduct- investigation, ENRC executives Blackstone’s Commentaries no fewer ing that litigation.”15 Thus, the “docu- believed that a formal SFO investiga- than 28 times — in more than one of ments are protected … when they tion was likely.28 every 10 cases.4 And in that same peri- have been made with a view to such By mid-2011, the allegations od of time, it has cited the courts of litigation, either for the purpose of against ENRC went public when the , Great Britain, and the United obtaining advice as to such litigation, British press published an article Kingdom no fewer than 17 times.5 or of obtaining evidence to be used in describing the whistleblower allega- English decisions dating to the 1600s such litigation, or of obtaining infor- tions.29 That reporting, in turn, and 1700s — the time period sur- mation which might lead to the attracted the attention from the SFO rounding the American founding — obtaining of such evidence.”16 Third, that ENRC executives had predicted. are discussed most frequently.6 But the litigation must be “adversarial, not In August 2011, the SFO sent ENRC a more modern jurisprudence is rele- investigative or inquisitorial.”17 letter. That letter referenced the press vant as well.7 The United Kingdom and The U.S. “work-product doctrine” reports of corruption allegations and members of Parliament have also is the American cousin of the litigation “urged ENRC to consider carefully the expressed their views on American privilege. It protects the confidentiality SFO’s 21st July 2009 Self-Reporting law, having filed amicus briefs in 14 of materials “prepared in anticipation Guidelines … whilst undertaking its cases pending before the U.S. Supreme of litigation or for trial.”18 Under the internal investigations.”30 The letter Court in the last 15 years.8 American work-product doctrine, a invited ENRC to meet with the SFO to U.K. LITIGATION PRIVILEGE Given those shared historical roots document is prepared in anticipation discuss “‘ENRC’s governance and and the continuing influence of of litigation when it “can fairly be said compliance programme,’” but stated in the United States today, to have been prepared or obtained that, at that point, SFO had not initiat- it is unsurprising that the same because of the prospect of litigation.”19 ed a criminal investigation of ENRC.31 bedrock principles animate the two In other words, “production of the ENRC accepted the invitation to legal systems. Among those similarities material must be caused by the antici- meet and, throughout 2011 and 2012, is the shared view that the administra- pation of litigation” to qualify for met with the SFO on several occasions tion of justice — indeed, society as a work-product protection.20 Documents to discuss the allegations and its internal whole — is served best when lawyers that are prepared in the ordinary investigation.32 At these meetings, the have the freedom to render proper course of business do not meet that SFO emphasized the seriousness of the legal advice to a client in confidence.9 standard.21 The work-product doctrine allegations, stating that it “‘could give To do so, a lawyer must be able to attaches to both “documents and tangi- no assurance that it would not under- assemble facts, analyze them, and apply ble things” and “intangible” work take enforcement action and that ENRC the law without fear of disclosure.10 As product such as an attorney’s thoughts should take the matter very seriously.’”33 the House of Lords, which previously or recollections.22 Thus, the litigation Meanwhile, ENRC continued with served as the United Kingdom’s highest privilege and work-product doctrine its internal investigation. By 2012, judicial body, explained in one case, have traditionally been substantially attorneys for ENRC had interviewed 80 “each party should be free to prepare co-extensive. For the most part, what employees, and reviewed over 500,000 his case as fully as possible without the was protected by one would be protect- electronic documents and reams of risk that his opponent will be able to ed by the other. hard copy documents as part of their recover the material generated by his internal investigation.34 While con- preparations.”11 Both the “work-prod- The Factual Background: ducting its investigation, ENRC also uct doctrine” in U.S. law, and its equiv- ENRC’s Internal Investigation considered whether to avail itself of the alent in the United Kingdom — the The ENRC litigation arose from SFO’s corporate self-reporting policy. “litigation privilege” — serve that an SFO investigation into ENRC and Under that policy, the SFO, in consid- interest by protecting a lawyer’s ability its wholly owned subsidiary. In 2009 ering whether to prosecute the corpo- to maintain confidentiality over mate- and 2010, ENRC sought to acquire an ration, would take account of the cor- rials prepared or received in connec- African mining company, Camrose poration’s disclosure of wrongdoing.35 tion with a representation. Resources Limited.23 As part of that In October 2012 — in the middle The U.K. “litigation privilege” deal, ENRC — through an intermedi- of ENRC’s internal investigation — the protects from disclosure communica- ary company with ties to a friend of an SFO adopted new self-reporting guide- tions between parties or their lawyers African country’s president — was lines. The new guidelines required a and third parties that are made for the alleged to have also purchased the corporation to provide the SFO, as part purpose of obtaining information or rights to a copper mine that had been of the self-reporting process, with advice in connection with existing or unlawfully appropriated by the gov- “‘[a]ll supporting evidence including, contemplated litigation.12 For the liti- ernment of that African country.24 Also but not limited to emails, banking evi- gation privilege to apply, three condi- in 2010, ENRC received an email from dence and witness accounts.’”36 By tions must be satisfied: First, litigation a purported whistleblower who December 2012, ENRC’s lawyers had must be “in progress or in contempla- accused ENRC’s wholly owned sub- completed their internal investigation tion.”13 To meet this requirement, the sidiary of engaging in corruption and and prepared a draft report of investi- party claiming privilege must “show financial wrongdoing.25 gation.37 Noting the new self-reporting

NACDL.ORG MARCH 2019 23 guidelines, ENRC’s lawyers wrote the v certain other documents related to interest test is also met.”56 Thus, SFO requesting confirmation “‘that the books-and-records review.46 “[c]riminal proceedings cannot be ENRC is still part of the corporate self- reasonably contemplated unless the reporting process.’”38 ENRC also The SFO denied that these documents prospective defendant knows enough sought confirmation that any report of were covered by the litigation privilege and, about what the investigation is likely investigation would be submitted to in February 2016, initiated litigation.47 to unearth, or has unearthed, to appre- the SFO under a “‘limited waiver of ciate that” criminal prosecution and legal professional privilege for the pur- The High Court Rules conviction “is realistic.”57 poses of the corporate self-report That the Documents Are In the High Court’s view, ENRC’s only,’” and that the report would “‘not Not Protected by Privilege internal investigation did not unearth be used by the SFO as evidence of any After a four-day trial (on the priv- such evidence. Because the company wrongdoing’” if the SFO and ENRC ilege issues only), the High Court had no realistic expectation that it were unable to resolve the allegations.39 ruled on ENRC’s claims of privilege.48 would be prosecuted — at most, it had The SFO responded that it did not It concluded that the documents were only a realistic expectation of a formal consider ENRC to be in the self-report- not protected by the litigation privi- SFO investigation — ENRC’s internal ing process because ENRC had not yet lege for two reasons. investigation documents were not pro- reported any wrongdoing.40 With respect First, the High Court held that the tected by the litigation privilege. to privilege, the SFO rejected ENRC’s documents were not prepared at a Second, the High Court concluded position, stating that it could not limit its time when ENRC “was ‘aware of cir- that, even if criminal proceedings use of any investigative report.41 Voicing cumstances which rendered litigation could be reasonably contemplated, the “‘concern[] at the apparent lack of between itself and the SFO a real like- documents were not protected by the progress,’” SFO issued an ultimatum: lihood rather than a mere possibili- litigation privilege because they were ENRC needed to provide the SFO with a ty.’”49 It concluded that, when ENRC not prepared for the “dominant pur- copy of the investigative report by initiated the investigation, no one at pose” of obtaining legal advice in con- Jan. 31, 2013, or the SFO would open a ENRC believed the investigation ducting those proceedings.58 Instead, formal criminal investigation.42 A day would yield evidence that a crime mer- the High Court concluded that ENRC before that deadline, on Jan. 30, ENRC’s iting prosecution had occurred.50 The created the documents with the “spe- lawyers produced a copy of the draft High Court acknowledged that “it was cific purpose or intention” of provid- report to the SFO. A month later, on always possible that the internal inves- ing them to the SFO as part of the self- Feb. 28, 2013, they provided the SFO tigation … would turn up information reporting process.59 For that reason, with a copy of the 470-page final report.43 which, if it ever came to the attention too, the High Court concluded the On March 28, 2013, the SFO of the SFO, might result in criminal documents were not entitled to the informed ENRC that it believed a “cor- proceedings.” That possibility, howev- protections of litigation privilege.60 ruption offence” had occurred and stat- er, was merely speculative.51 At most, The High Court thus ruled in favor of ed that it was considering a formal the evidence suggested that ENRC ini- the SFO, ordering that ENRC was investigation. The SFO also served on tiated its internal investigation out of required to produce most of the docu- ENRC several document requests, concern that the SFO would initiate a ments over which it had asserted privilege. including requests for documents that formal investigation after it learned of constituted work papers from and evi- the allegations.52 But the prospect of an NACDL Seeks Leave dence uncovered by ENRC’s internal SFO investigation did not qualify as to Intervene Before the investigation. The SFO ordered ENRC adversarial litigation for purposes of UK Court of Appeal to produce those documents by April determining whether the litigation ENRC appealed the High Court’s 44 53 U.K. LITIGATION PRIVILEGE U.K. LITIGATION 27, 2013. Before that deadline passed, privilege applied. decision to the U.K. Court of Appeal. however, the SFO accepted the case and In other words, the High Court Both the High Court’s decision and opened a formal investigation. concluded that, because ENRC’s inves- the subsequent appeal received exten- ENRC, in turn, asserted both the tigation did not uncover any evidence sive attention and were heavily covered litigation privilege and the legal advice of a crime (or, at least, that ENRC did in the British press.61 The case received privilege (the U.K. analog to the attor- not view the investigation as having attention outside the United Kingdom ney-client privilege) over the docu- uncovered evidence of a crime), ENRC as well.62 Among those watching the ments and refused to produce them.45 had no reason to think criminal prose- case were members of NACDL, who Specifically, ENRC asserted privilege cution was a real likelihood.54 Going immediately recognized that the con- over four categories of documents: further, the High Court drew a sur- sequences of the High Court’s decision prising distinction between the were not limited to the United v attorney notes and memoranda breadth of litigation privilege in civil Kingdom. The decision could have a from witness interviews of ENRC’s and criminal proceedings, suggesting profound impact on entities and employees; that the privilege may apply more organizations in the United States, too. broadly in the context of civil proceed- The High Court’s narrow view of liti- v materials created by the auditor that ings. Civil proceedings, the High gation privilege could result in waiver ENRC’s lawyers had hired to con- Court explained, can be initiated even of work-product protections under duct the books and records review; “where there is no properly arguable U.S. law. NACDL set about to make cause of action.”55 But “[c]riminal pro- sure that, in considering ENRC’s v documents summarizing the con- ceedings … cannot be started unless appeal, the U.K. Court of Appeal was clusions and investigative findings and until the prosecutor is satisfied aware of that impact. as presented by ENRC’s lawyers to that there is a sufficient evidential In an American court, NACDL’s ENRC’s board of directors; and basis for prosecution and the public course would be clear — submit an

24 NACDL.ORG THE CHAMPION amicus brief. Indeed, NACDL routine- ing, and challenging a legal argu- similar to those in ENRC — that attor- ly participates as amicus in cases ment.67 It is not uncommon for advo- ney notes from witness interviews involving issues that are important to cates to read passages from cases to the conducted as part of an internal inves- its membership, filing dozens of amici court — a practice that would surely tigation were protected work prod- briefs every year.63 But the rules of irritate a U.S. . That emphasis on uct.71 The court reasoned that, when the U.K. Court of Appeal do not clear- oral advocacy makes written submis- “the internal investigation com- ly provide for the filing of written sions by non-parties somewhat menced, it was anticipated that any amicus submissions. The absence of uncommon in the United Kingdom. facts which were developed which such a rule is not surprising, given Working with highly regarded bar- demonstrated criminal violations of the relative importance of written rister Amanda Pinto, Q.C., who is an the antitrust laws could result in both advocacy and oral advocacy in the acknowledged expert in corporate criminal and/or civil litigation.”72 It United Kingdom. criminal matters, and her junior, did not matter that “there was no liti- As any appellate lawyer in the Catherine Collins — both of the gation pending or imminent at the United States knows, briefs do the Chambers at 33 Chancery Lane — time of [the] interviews.”73 “[O]ne of heavy lifting of developing and NACDL prepared what would function the primary reasons for undertaking explaining a legal argument on appeal as an amicus brief in an American the investigation,” the court explained, in the U.S. courts. They are lengthy — appeal and submitted it to the Court of “was to determine whether or not vio- often 50 or 60 pages, sometimes more Appeal. Court staff in the Appeal Office lations had occurred and to prepare — and arguments not raised in the advised that the “master” — a judge [for] any litigation which might result briefs are waived. Amicus briefs, who deals with all procedural issues from such violations.”74 That was pre- through which non-parties can pro- in the case leading up to, and after, a cisely the purpose of ENRC’s investi- vide the court with additional infor- trial or hearing68 — would decide gation: “to find out if there was mation or perspective not emphasized whether to accept the submission, given any truth in the whistleblower’s allega- by the parties, are common. In fact, that the rules of the Court of Appeal tions (and then to decide what to do securing amicus support can be a crit- did not clearly provide for amicus sub- about it if there was …).”75 Thus, the ical component of appellate strategy. missions. Ultimately, the master refused materials at issue in ENRC would have An amicus brief might argue policy to accept the submission, directing that qualified from work-product protec- implications or consequences of a par- NACDL submit a formal application tions in the United States. ticular outcome that a party itself can- for permission to intervene by way of Significantly, under American law, not credibly raise because it may not written submissions. if protected work product is disclosed suffer those consequences. Amici Unlike in the United States,69 an outside the attorney-client relation- might present facts or other informa- intervenor in a U.K. court case need ship without precautions to prevent tion that fall within their area of not demonstrate standing. Instead, a subsequent disclosure to a potential expertise. Or amici might be encour- prospective intervenor need only sub- adversary, its confidentiality is lost as aged to stake out a more extreme posi- mit an “application notice” requesting to the rest of the world.76 That is no tion than the party to the appeal — a leave to intervene and a witness state- less true when disclosure is made to a practice known informally as “flank- ment describing the facts and infor- government agency.77 Even involuntary ing” — to make the party’s position mation that the prospective inter- disclosure can waive confidentiality seem more reasonable and measured. venor wishes to bring to the court’s under the work-product doctrine.78 In contrast to the prominent role of attention. As directed, NACDL And, once otherwise protected materi- briefing in an American appeal, oral prepared the requisite application al has been disclosed, a party can no argument is time-limited — some- notice and witness statement, seeking longer invoke work-product protec-

U.K. LITIGATION PRIVILEGE U.K. LITIGATION times as short as 10 minutes — and permission to intervene by way of tion. In other words, one cannot focused on a few key issues of concern written submissions — its earlier sub- “unscramble the egg.” to the court. mitted amicus brief. The High Court’s decision in The emphasis in U.K. courts is ENRC I thus presented a real risk of flipped. Briefing is limited to the NACDL’s Written undermining the scope of work-prod- “skeleton argument,” an outline of the Submission Highlights the uct protections in the United States. argument spanning no more than 25 International Consequences Applying the High Court’s decision in pages (frequently, far less than 25 of the High Court’s Ruling ENRC I, a U.K. court could have decid- pages).64 These submissions are a “very NACDL’s written submission ed that investigative material — mate- abbreviated note of the argument” and explained that much of the material at rial ordinarily entitled to work-prod- contain “a numbered list of points the heart of the High Court’s decision uct protections in the United States — stated in no more than a few sentences — witness interview memoranda, the was not entitled to confidentiality which … both define and confine the work product of outside consultants under the litigation privilege and areas of controversy” and “in no way retained by counsel — would have been could order disclosure of that materi- usurp any part of the function of oral protected under the American work- al. That disclosure could have defeated argument in court.”65 Advocates are product doctrine.70 Compelled disclo- the assertion of work-product protec- also required to lodge with the court sure of that material in the United tion in the United States because a U.S. copies of the relevant authorities on Kingdom, NACDL argued, would have court could have decided that disclo- which they rely.66 These collectively jeopardized those work-product pro- sure in the United Kingdom — even if form each party’s “bundle.” The “hear- tections in the United States. compelled by a decision such as ENRC ing” — oral argument, which even in For example, in Massachusetts v. I — would waive work-product pro- an appeal can last for days — is the First National Supermarkets, Inc., the tections. The determination of no con- main vehicle for presenting, develop- court found — under circumstances fidentiality in the United Kingdom

26 NACDL.ORG THE CHAMPION would mean a corresponding loss of Rolls-Royce’s disclosure to the confidentiality in the United States. Department of Justice. In announcing NACDL thus argued to the Court the result, American officials touted Forensic DNA of Appeal that the shift in the law the case as an example of the “strong brought about by the High Court’s relationship between the United States Consultant decision would unquestionably have a and the U.K. Serious Fraud Office.”81 negative effect on litigants involved in The involvement of the SFO com- U.K.-U.S. cross-border proceedings bined with the High Court’s decision in and investigations. Lawyers and their ENRC I could have jeopardized the LISA MOKLEBY clients would have been prejudiced by American work-product protections B.Sc., M.S.F.S. an inability to provide proper, well- afforded to documents generated in the developed advice without the risk that course of an internal investigation in 306‐960‐7495 what went into forming that advice — each of those cases and others like n indeed, the advice itself — may be dis- them. Indeed, as of 2017, the SFO was Trial preparation/ covered by an adversary. involved in 10 percent of all open FCPA assistance Those risks, moreover, were not investigations by the Department of n DNA case file review merely theoretical. The realities of Justice and the Securities and Exchange and data interpretation modern commerce have rendered Commission.82 And at least 24 times in n national borders less important. the past four years, the Department of Expert witness testimony Frequently, transactions — particular- Justice has thanked the SFO for its n Can educate and give ly those involving the financial and cooperation and assistance when lectures on DNA insurance markets — have a trans- announcing resolutions of a criminal Atlantic component. Consequently, case or investigation in the United recent years have seen an increasing States. That level of cooperation is only U.K. LITIGATION PRIVILEGE number of cross-border investiga- likely to increase now that former sen- tions. Of late, the SFO has frequently ior FBI official Lisa Osofsky has partnered with the U.S. Department of assumed leadership of the SFO.83 Justice to conduct parallel investiga- Nor is the trans-Atlantic coopera- tions involving conduct on both sides tion limited to the SFO and the check out my website: of the Atlantic — formally agreeing to Department of Justice. The U.K. www.AuroraForensics.ca share the “facts of the case” and “key Financial Conduct Authority and the evidence,” among other forms of coop- City of Police this past year eration.79 “Key evidence,” of course, assisted the U.S. Securities and could include documents and infor- Exchange Commission in its fraud England & — a professional mation that were treated as non-privi- investigation of State Street, an action organization akin to a bar association in leged under the High Court’s decision that resulted in payment of a $35 mil- the United States — which had earlier in ENRC I, and obtained by the SFO. lion penalty.84 And, of course, the been granted leave to intervene and The SFO then could have made the impact of ENRC I would have extend- present oral argument. The Law Society, documents available to U.S. authori- ed to parallel civil litigation that can however, did not oppose NACDL’s ties under the cooperation agreement, often accompany a criminal and regu- motion, nor did ENRC. notwithstanding that the documents latory investigation. Ultimately, the Court of Appeal would otherwise be protected under Following ENRC I, a lawyer advis- issued a Solomonic decision on the American work-product doctrine. ing a client in a U.S. proceeding or NACDL’s motion. The court denied A few recent cases illustrate the investigation that may have a U.K. permission to intervene. However, it scope and breadth of the cooperation aspect to it would have had to consider encouraged NACDL to provide a copy between law enforcement authorities whether providing the most thoughtful of its submission and the authorities in the United Kingdom and the United analysis and forthright advice might on which it relied to ENRC, the SFO, States, demonstrating the reality of the ultimately work to the client’s detri- and the Law Society — an opportunity risk presented by the High Court deci- ment. NACDL thus recognized the that NACDL seized. sion. Last year, Deutsche Bank’s negative impact that decision would London subsidiary was sentenced in have on the robust adversarial system The UK Court of Appeal the United States after pleading guilty that is central to the administration of Overturns the High Court to wire fraud based upon its manipu- justice in both the United Kingdom Notwithstanding the court’s deci- lation of the LIBOR international and the United States. And its submis- sion on NACDL’s motion to intervene, interest rate. As the Department of sion sought to place that perspective NACDL’s arguments did not go unno- Justice made clear in announcing the before the Court of Appeal. ticed. During the three-day hearing, the sentence, the assistance and coopera- Law Society emphasized the interna- tion of the SFO were critical to the The Court of Appeal’s Response to tional repercussions of the High Court’s success of the American investiga- NACDL’s Uncommon Request decision. It argued that English law on tion.80 Also last year, Rolls-Royce Predictably, the SFO opposed privilege should be consistent with that agreed to pay $170 million in criminal NACDL’s motion to intervene. It argued of other common law jurisdictions and fines arising from violations of the that NACDL’s perspective was unneces- pointed out that no other common law U.S. Foreign Corrupt Practices Act sary because the interests of the legal jurisdiction imposed the sort of restric- (“FCPA”). The SFO initiated the inves- profession were adequately represented tions on privilege found in the High tigation, which ultimately prompted in the case by the Law Society of Court’s decision.85 The Law Society even

NACDL.ORG MARCH 2019 27 directly referenced NACDL’s arguments, concluded. That an attorney may have develop a firm understanding of the explaining that because the SFO shares prepared a document for disclosure to privileges, immunities, and confiden- information with foreign counterparts, an opposing party does not, the court tiality that apply to attorney-client com- like DOJ, a narrower definition of priv- explained, strip the underlying munications and attorney work product ilege in the United Kingdom would preparatory work of entitlement to the under the laws of each jurisdiction. allow those foreign counterparts to litigation privilege.95 In short, docu- And, perhaps more importantly, entities obtain information that they would ments prepared “to head off, avoid or should consider and understand how otherwise not be entitled to under their even settle reasonably contemplated those different legal doctrines interact domestic law.86 proceedings” are as much entitled to across foreign borders to ensure that The Lord Justices of the Court of litigation privilege as documents aris- decisions made in one jurisdiction will Appeal appeared sensitive to those con- ing from efforts to “resist[] or not have the unintended effect of waiv- cerns as well. Lord Justice Vos in partic- defend[]” against those proceedings.96 ing protections in another. ular seemed sympathetic to the view- In the United Kingdom, a losing point that English law on privilege party before the Court of Appeal can Notes should be consistent with that of other seek further review in the U.K. 1. Margaret Thatcher, Toasts of the common law jurisdictions.87 Indeed, he Supreme Court. (As in the United President and Prime Minister Margaret went so far as to say that, if it is not, the States, the Supreme Court is the United Thatcher of the United Kingdom at a Dinner common law itself may be in jeopardy.88 Kingdom’s highest judicial authority, at the British Embassy (Feb. 20, 1985), Ultimately, the Court of Appeal having taken over that role from the http://www.presidency.ucsb.edu/ws/ reversed the decision of the High Court Appellate Committee of the House of index.php?pid=38242. (“ENRC II”).89 It concluded that both Lords in 2009.97) Recently, however, the 2. Knight v. Florida, 120 S. Ct. 459, reasons given by the High Court for SFO announced that it would not seek 463-64 (1999) (Breyer, J., dissenting). denying privilege — that no adversarial review of the ENRC II decision in the 3. See, e.g., Byrd v. United States, 138 S. litigation was reasonably contemplated, U.K. Supreme Court.98 Thus, the prin- Ct. 1518, 1527 (2018); Ziglar v. Abbasi, 137 S. and that the documents were not created ciples of litigation privilege laid out in Ct. 1843, 1874 (2017) (Breyer, J., dissenting); for the dominant purpose of defending the Court of Appeal’s ENRC II decision Shaw v. United States, 137 S. Ct. 462, 466 against that litigation — were incorrect. are — for now, at least — settled. (2016); Knight v. Florida, 120 S. Ct. 459, In this case, the Court of Appeal 463-64 (1999) (Breyer, J., dissenting). explained, the circumstances provided Conclusion 4. See, e.g., Byrd, 138 S. Ct. at 1527; ample reason for ENRC to believe that The Court of Appeal decision in Ziglar, 137 S. Ct. at 1874 (Breyer, J., adversarial litigation — criminal pro- ENRC II was, without question, both a dissenting); Shaw, 137 S. Ct. at 466. ceedings — were in reasonable contem- big victory for those who rely upon the 5. See, e.g., Pena-Rodriguez v. Colorado, plation.90 Indeed, the SFO had specifical- litigation privilege and a firm signal of 137 S. Ct. 855, 863 (2017). ly made clear to ENRC that criminal the importance of that privilege in the 6. See, e.g., Sessions v. Dimaya, 138 S. Ct. proceedings were a possibility.91 adversarial system of justice that the 1204, 1245 (2018) (Thomas, J., dissenting); The Court of Appeal also rejected the United States and the United Kingdom Artis v. District of Columbia, 138 S. Ct. 594, High Court’s conclusion that, for litiga- share. Corporations that are subject to 610 (2018) (Gorsuch, J., dissenting). tion privilege to apply in the context of an the SFO and other law enforcement 7. For example, in Water Splash, Inc. v. anticipated criminal proceeding, the indi- authorities in the United Kingdom — Menon, 137 S. Ct. 1504 (2017), Justice Alito, vidual must know that a crime has a rising number in recent years — can writing for a unanimous Court, held that occurred. A party anticipating possible now rest assured that documents and the Hague Service Convention does not criminal prosecution, the Court of Appeal memoranda produced in the course of prohibit service by mail. In reaching

U.K. LITIGATION PRIVILEGE U.K. LITIGATION reasoned, “will often need to make further an internal investigation will likely that conclusion, he invoked decisions from investigations before it can say with cer- remain privileged, both in the United the United Kingdom (and other tainty that proceedings are likely.”92 That is Kingdom and the United States. Commonwealth nations) that similarly held especially true when the putative defen- Nonetheless, the Court of Appeal the Convention does not prohibit service dant is a corporation. Without an internal took pains to make clear that its deci- by mail. Id. at 1512 n.6 (citing, among other investigation, a corporation will often, if sion turned on the facts of this particu- cases, Crystal Decisions (U.K.), Ltd. v. Vedatech not always, lack the information necessary lar case.99 For example, the court point- Corp., [2004] EWHC (Ch) 1872, 2004 WL to evaluate the sort of allegations lodged ed out that not “every SFO manifesta- 1959749, ¶21); see also Lozano v. Montoya against ENRC here.93 Thus, the Court of tion of concern would properly be Alvarez, 134 S. Ct. 1224, 1233 (2014) (citing Appeal squarely rejected the distinction regarded as adversarial litigation.”100 Cannon v. Cannon, [2004] EWCA (Civ) 1330, between civil and criminal proceedings on Thus, even after ENRC, a U.K. court [2005] 1 W.L.R. 32, ¶51). which the High Court had relied: “It may conclude that documents generat- 8. See, e.g., Brief of the Government of the would be wrong for it to be thought that, ed in an internal investigation are not United Kingdom of Great Britain and in a criminal context, a potential defen- entitled to the litigation privilege, Northern Ireland, United States v. Microsoft dant is likely to be denied the benefit of although the standard for making such Corp., 138 S. Ct. 1186 (2018); Brief of the United litigation privilege when he asks his solic- a finding has undoubtedly been raised. Kingdom of Great Britain and Northern itor to investigate the circumstances of In that sense, and notwithstanding the Ireland, Carty v. Thaler, 559 U.S. 1106 (2010). any alleged offence.”94 Court of Appeals decision in this case, 9. See Three Rivers Dist. Council v. The High Court’s determination the biggest lesson from ENRC remains: Governor & Co. of the Bank of Eng. (No. 6) that privilege did not apply because the Entities that are subject to the regulato- [hereinafter Three Rivers (No. 6)], [2004] documents had been prepared for the ry authority of multiple jurisdictions UKHL 48, ¶¶52, 85; Hickman v. Taylor, 329 purpose of self-disclosure to the SFO should, at the outset of any internal U.S. 495, 516 (1947) (Jackson, J., concurring) was also flawed, the Court of Appeal probe into allegations of misconduct, (“[D]iscovery should not nullify the

28 NACDL.ORG THE CHAMPION privilege of confidential communication 27. Id. ¶12. authorization, the High Court concluded between attorney and client.”). 28. Id. ¶¶13-15. that the legal advice privilege did not apply 10. Hickman, 329 U.S. at 511. 29. Id. ¶16. to most of the documents. Id. ¶¶177-179. 11. Three Rivers (No. 6), [2004] UKHL 30. Id. ¶17. 61. See, e.g., Barney Thompson, Miner 48, ¶¶52. 31. Id. ENRC Wins Leave to Appeal on Handling 12. Id. ¶¶10, 102; United States v. Philip 32. Id. ¶¶20-31. Over Documents, FINANCIAL TIMES, Morris Inc. (No. 1) (“Philip Morris (No. 1)”), 33. Id. ¶22. Oct. 11, 2017, https://www.ft.com/ [2003] EWHC 3028 (Comm). 34. Id. ¶31. content/d2a0895e-ae71-11e7-aab9 13. Three Rivers (No. 6), [2004] UKHL 35. See Serious Fraud Office, Corporate -abaa44b1e130 (last accessed Oct. 3, 48, ¶102. Self-Reporting, https://www.sfo.gov.uk/ 2018); Caroline Binham & Jane Croft, High 14. Philip Morris (No. 1), [2003] EWHC publications/ guidance-policy-and- Court Backs SFO Access to ENRC Evidence, 3028, ¶46. protocols/corporate-self-reporting/ FINANCIAL TIMES, May 9, 2017, 15. Three Rivers (No. 6), [2004] UKHL (last accessed Oct. 2, 2018). https://www. ft. com /content/b1d27a70 48, ¶102. 36. ENRC II, [2018] EWCA Civ 2006, ¶32. -34d7-11e7-99bd-13beb0903fa3 (last 16. Id. ¶99 (quoting Wheeler v. 37. Id. ¶34. accessed Oct. 3, 2018); Caroline Bin ham, Le Marchant, [1881] 17 Ch. D. 675, at 680-81). 38. Id. Judge to Weigh What Material ENRC Must 17. Id. ¶102. 39. Id. Turn Over in Criminal Probe, Financial 18. Fed. R. Civ. P. 26(b)(3)(A)-(B); 40. Id. ¶35. Times (Feb. 1, 2017), https://www.ft.com/ Hickman, 329 U.S. at 508. 41. Id. content/763b45fa-6a05-3173-a201 19. 8 CHARLES ALAN WRIGHT ET AL., FEDERAL 42. Id. -aef59f2421b1 (last access ed Oct. 3, 2018). PRACTICE AND PROCEDURE § 2024. 43. Id. ¶¶37-38. 62. See, e.g., Alex Davis, SFO Wins 20. Musa-Muaremi v. Florists’ Transworld 44. Id. ¶41. Landmark Privilege Ruling to Access Internal Delivery, Inc., 270 F.R.D. 312, 321 (N.D. Ill. 2010). 45. Id. ¶42. Docs, LAW360 (May 10, 2017), https:// 21. Id. 46. Id. ¶46. www.law360.com/articles/922424/sfo-wins- 22. See Fed. R. Civ. P. 26(b)(3); In re 47. Id. ¶43. landmark-privilege-ruling-to-access Cendant Corp. Sec. Litig., 343 F.3d 658, 662 48. Dir. of the Serious Fraud Office v. -internal-docs (last accessed Oct. 3, 2018). (3d Cir. 2003). Eurasian Nat. Res. Corp., [2017] EWHC 1017 63. See National Association of 23. Dir. of the Serious Fraud Office v. (QB) [hereinafter ENRC I]. Criminal Defense Lawyers Inc., Amicus Eurasian Nat. Res. Corp., [2018] EWCA Civ 49. Id. ¶149. Briefs, https://www. nacdl.org/Amicus/. 2006, ¶7 [hereinafter ENRC II]. 50. Id. ¶¶102-105. 64. See U.K. Ct. App. Civ. Div. Practice 24. Id. 51. Id. ¶118. Direction 52C ¶31. 25. Id. ¶8. 52. Id. ¶105. 65. Suzanne Ehrenberg, Embracing the 26. Id. 53. Id. ¶151. Writing-Centered Legal Process, 89 IOWA L. 54. Id. ¶¶159-161. REV. 1159, 1168 & n.32 (2004) (quoting U.K. 55. Id. ¶160. Ct. App. Civ. Div. Practice Direction 3.1.1). 56. Id. 66. See U.K. Ct. App. Civ. Div. Practice 57. Id. Direction 52C ¶29. 58. Id. ¶164. 67. See generally The Honourable 59. Id. ¶¶170-171. Society of the Middle Temple, Guide to 60. The High Court also concluded that Advocacy (Sept. 2014). the documents did not fall within the scope 68. See U.K. Courts and Tribunals National Advocacy of the United Kingdom’s legal advice Judiciary, High Court Masters and Registrars,

U.K. LITIGATION PRIVILEGE U.K. LITIGATION privilege. The analog to attorney-client https: //www. judiciary.uk/about-the Calls on Developing privilege in the United States, legal advice -judiciary/who-are-the-judiciary/judicial Legislation (NACDL) privilege “attaches to all communications -roles//high-ct-masters-regis t r ars/ passing between the client and its lawyers, (last accessed Oct. 8, 2018). Monica L. Reid hosts this acting in their professional capacity, in 69. See Fund for Animals, Inc. v. Norton, recurrent conference call connection with the provision of legal 322 F.3d 728, 732-33 (D.C. Cir. 2003) series to inform advocates of advice.” ENRC I, [2017] EWHC 1017 (QB), ¶62. (describing rules of standing for a Unlike litigation privilege, legal advice prospective intervenor). legislation and litigation that privilege does not require that litigation be 70. See Sandra T.E. v. S. Berwyn Sch. Dist. impact criminal justice issues. reasonably contemplated. Id. However, in 100, 600 F.3d 612, 622 (7th Cir. 2010) (attorney The calls generally feature a the corporate context, the legal advice memoranda protected under work-product privilege only attaches to communications doctrine because “[w]ork-product protection presentation by an expert made between the lawyer and “those applies to attorney-led investigations when and a question and answer individuals who are authorised to obtain the documents at issue ‘can fairly be said to segment with listeners. legal advice on [the] entity’s behalf.” Id. ¶70. have been prepared or obtained because of Thus, unless a corporate employee (or even the prospect of litigation’”). To listen please visit a corporate officer) has been authorized to 71. 112 F.R.D. 149 (D. Mass. 1986). solicit and obtain legal advice on behalf of 72. Id. at 151. NACDL.org/ the corporation, that employee’s or officer’s 73. Id. scjnadvocacycalls communications with the company’s 74. Id.; see also Upjohn Co. v. United lawyers will not be privileged. Id. ¶¶70-87. States, 449 U.S. 383, 401-02 (1981) (notes

07132018 Because ENRC’s lawyers interviewed many and memoranda from internal corporate employees who lacked that investigation were protected work

30 NACDL.ORG THE CHAMPION product); In re Grand Jury Subpoena, 599 Failures (Sept. 7, 2017), https://www. judgment, primarily factual …”). F.2d 504, 511-12 (2d Cir. 1979) (similar); sec.gov/news/press-release/2017-159. 100. Id. ¶96. n Lafate v. Vanguard Grp., Inc., No. 13-cv-5555, 85. Elaina Bailes & Oliver Ingham, Will 2014 WL 5023406, at *6 (E.D. Pa. Oct. 7, 2014) Court of Appeal Case Clarify Muddled Law on About the Authors (“Generally, documents created as part of Legal Advice and Litigation Privilege?, an internal investigation, such as the one at LEXOLOGY (July 18, 2018), https://www. Steven Molo represented NACDL in issue in this case, are considered to be lexology.com/library /detail.aspx?g=9ba05 ENRC. A partner at made in anticipation of litigation for the 788-cf56-4dcb-896c-65cbcbbb4dae. MoloLamken LLP, purposes of the work-product doctrine.”). 86. Id. he is one of the 75. ENRC I, [2017] EWHC 1017, ¶165. 87. Id. nation’s leading 76. See, e.g., In re Qwest Commc’ns Int’l, 88. Id. courtroom advo- Inc., 450 F.3d 1179, 1193 (3d Cir. 2006) 89. ENRC II, [2018] EWCA Civ. 2006. cates. He represents (voluntary disclosure to government Even before the Court of Appeal clients around the agency can waive work-product overturned ENRC I, the High Court itself world in white col- protections as to all); In re Columbia/HCA had begun to question the wisdom of lar criminal matters NACDL MEMBER Healthcare Corp. Billing Practices Litig., 293 that decision. In Bilta (UK) Ltd. v. Royal and complex busi- F.3d 289, 302, 306-07 (6th Cir. 2002) (same); Bank of Scotland PLC, [2017] EWHC 3535, ness litigation throughout America. In re Steinhardt Partners, L.P., 9 F.3d 230, 234 ¶¶58-72 (Ch.), the High Court ruled that (2d Cir. 1993) (same). documents generated during an internal Steven Molo 77. See, e.g., Westinghouse Elec. Corp. v. investigation were covered by the MoloLamken LLP Rep. of Phil., 951 F.2d 1414, 1430 (3d Cir. litigation privilege. In doing so, Bilta 430 Park Avenue 1991) (disclosure to government agency, noted tension between ENRC I and other New York, NY 10022 which was potential adversary, waived decisions of the Court of Appeal. Id. ¶58. It 212-607-8170 work-product protection notwithstanding also emphasized that determining EMAIL [email protected] U.K. LITIGATION PRIVILEGE existence of non-disclosure agreement). litigation privilege is a fact-bound WEBSITE www.mololamken.com 78. See United States v. Ary, 518 F.3d inquiry; one company’s interactions with 775, 783-84 (10th Cir. 2008). the SFO do not say much about the Eric Nitz is a partner at MoloLamken 79. See Agreement for Handling application of privilege based on another LLP. He represents Criminal Cases with Concurrent Jurisdiction company’s interactions. Id. ¶59. clients in white col- Between the United Kingdom and the United 90. ENRC II, [2018] EWCA Civ. 2006 ¶96. lar criminal matters States of America, U.K.-U.S., ¶10, Jan. 2007, 91. Id. and congressional https://publications. parlia ment. uk/ pa/ ld 92. Id. ¶98. investigations. He 200607/ldlwa/70125ws1.pdf. 93. Id. has argued appeals 80. See Press Release, U.S. Dep’t 94. Id. ¶99. in several circuits, of Justice, Deutsche Bank’s London 95. Id. ¶102. and briefed appeals Subsidiary Sentenced for Manipulation 96. Id. While ENRC prevailed on the in the U.S. Supreme of LIBOR (Mar. 28, 2017), https:// litigation privilege issues, the Court of Court and numerous courts of appeals. www.justice.gov/opa/pr/deutsche-bank Appeal concluded that binding -s-lon don-subsidiary-sentenced — Three Rivers District Council & Others v. Eric Nitz -manipulation-libor. Governor & Co. of the Bank of England (No. 5), MoloLamken LLP 81. See Press Release, U.S. Dep’t of [2003] QB 1556 [hereinafter Three Rivers 600 New Ave. NW Justice, Rolls-Royce plc Agrees to Pay (No. 5)] — required it to affirm the High Washington, DC 20037 $170 Million Criminal Penalty to Resolve Court’s decision on the legal advice 202-556-2021 Foreign Corrupt Practices Act Case (Jan. privilege issues. ENRC II, [2018] EWCA Civ. EMAIL [email protected] 17, 2017), https://www. justice.gov/opa/ 2006 ¶¶123-130. Still, the court questioned WEBSITE www.mololamken.com pr/rolls-royce-plc-agrees-pay-170 the reasoning of Three Rivers (No. 5), stating -million-criminal-penalty-resolve its inclination to overrule that decision Ekta Dharia is an Associate at Molo- -foreign-corr u p t-practices-act. were it free to do so. Id. ¶130. The SFO Lamken LLP. Her 82. See Skadden, Arps, Slate, Meagher & recently announced that it would not seek practice focuses on Flom LLP , Cross-Border Investigations Update review of the ENRC II decision in the U.K. complex civil litiga- (Nov. 2017), https://www.skadden.com/ Supreme Court, perhaps in part to preclude tion, white collar insights/publications/2017/11/ the Supreme Court from accepting the criminal matters, cross- border-investigations-up da t e invitation by the Court of Appeal to and appellate liti- -november-2017. overrule Three Rivers (No. 5). gation. 83. See Frances Gibb, Jonathan Ames & 97. See U.K. Supreme Court, Frequently Harry Wilson, Fraud Office Faces Uncertain Asked Questions, https://www.supremecourt. Future as Ex-FBI Lawyer Lisa Osofsky Set to uk/faqs. html#1a (last accessed Oct. 8, 2018). Take Charge, SUNDAY TIMES, Apr. 26, 2018, 98. See Richard Crump, SFO Won’t Ekta Dharia https:// www. thetimes. co.uk/article/ Appeal Landmark ENRC Legal Privilege MoloLamken LLP fraud-office-faces-uncertain-future-as-ex Ruling, LAW360 (Oct. 2, 2018), 430 Park Avenue -fbi-lawyer-lisa-osofsky-set-to-ta k e https://www.law360.com/articles/1088530 New York, NY 10022 -charge-ggj8qpp0k. /sfo-won-t-appeal-landmark-enrc-lega l 212-607-8152 84. Press Release, U.S. Sec. & Exch. -privilege-ruling. EMAIL [email protected] Comm’n, State Street Paying Penalties to 99. ENRC II, [2018] EWCA Civ. 2006, ¶88 WEBSITE www.mololamken.com Settle Fraud Charges and Disclosure (noting “[t]his aspect of the appeal is, in our

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