Internal investigations with international reach are now more common than ever, as corporations become increasingly multinational and enforcement of the Foreign Corrupt Practices Act (FCPA)1 in the United States continues to rise. In 2010 alone, the Securities and Exchange Commission collected $1.8 billion in FCPA fines.2 In just the last few months, U.S. regulators have announced FCPA investigations and settlements with corporations that included Deere & Co., Johnson & Johnson, and Tyson.3 On the other side of the Atlantic, the European Union’s (EU) European Commission has aggressively investigated alleged violations of EU antitrust laws by U.S. companies, including Microsoft, IBM, and Google.4
More and more internal investigations involve interviews conducted of foreign employees outside the United States. This article focuses on the considerations that govern the application of privilege law to such interviews and provides advice on how to protect the attorney-client privilege under U.S. law when conducting an investigation on foreign soil. The first part of this article reviews the standards courts will use to determine whether to apply the privilege law of the United States or of a foreign country in connection with an interview. The second suggests ways to ensure that U.S. privilege law applies to interviews in foreign countries. The third examines a related issue—the discoverability in the United States of disclosures made to a foreign government authority of the fruits of an internal investigation.
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