- Communications between a client and a lawyer will be protected by legal advice privilege where their purpose is giving or receiving legal advice – whatever the relevant legal context. Where a lawyer is not involved, documents or communications will only be privileged where litigation privilege applies – i.e. where the dominant purpose of the documents or communications is for use in actual or contemplated litigation.
- The litigation must be adversarial. Whether or not investigations and inquiries are sufficiently adversarial to constitute ‘litigation’ for litigation privilege purposes is not always clear. This will depend on the nature of the investigation or inquiry and how it is carried out. Litigation will not include processes which are purely administrative or fact-finding. Similarly, an internal investigation (focused on, for example, internal ethical or governance concerns) is unlikely to be sufficiently adversarial. Litigation privilege may be available where the purpose of the internal investigation is to defend claims which are genuinely anticipated.
- In practice, the nature of some inquiries and investigations may change over time from being fact-finding to adversarial, allowing litigation privilege to apply to the later if not the earlier stages. The initial or informal stages of a regulatory investigation, where the relevant agency is using its evidence-gathering powers as part of an investigation of the facts giving rise to the concern, are not likely to be considered sufficiently adversarial. This may also be the case even where regulators have set out suspected breaches and/or offences. This is because, unless and until regulators have confirmed that there is any substance to their suspicions, there may be no real reason to anticipate litigation.
- Exactly when an investigation becomes adversarial enough to constitute litigation will vary from case to case. In the course of regulatory proceedings, however, the point at which the regulator formally states its case against the company in question is likely to signal that litigation is in contemplation. The stage at which an investigation becomes “confrontational” also provides guidance as to whether the investigation will be sufficiently adversarial to constitute ‘litigation’ for litigation privilege purposes.
- Under US law, documents prepared during the course of an investigation can be protected both under the attorney-client privilege and the work product doctrine.
- There is not a unanimous view among US jurisdictions about when investigation material is afforded attorney-client protection. But courts have found a case out of the US Court of Appeals for the D.C. Circuit, called In re Kellogg Brown & Root, Inc., persuasive. In that case, the court held that materials prepared during an investigation can be protected under the attorney-client privilege if one of the significant purposes of the investigation is to obtain or provide legal advice. The court also held that materials created by non-attorneys, such as an accountant’s interview notes, can also be privileged if the non-attorney is acting as an agent of the attorney in the investigation.
- Materials prepared during an internal investigation may also be protected by the work product doctrine. The key consideration is whether the materials have been prepared in anticipation of litigation, which differs among jurisdictions. Most US courts find that materials that are prepared during a government investigation are prepared in anticipation of litigation.