The internationalization of white-collar practice has forced defense attorneys dealing with conduct in the corporate setting to become more aware of the disparate rules around the world regarding the protections for counsel’s activities.1 Recent investigative actions, including a highly-unusual raid on the Munich office of the U.S. law firm Jones Day by German authorities,2 as well some notable European court rulings suggest an erosion of protections for attorney communications and work product in the corporate context. As a result, corporations operating globally face significant uncertainty regarding their ability to maintain confidentiality, especially in the context of internal investigations. Companies and their U.S. law firms must carefully consider the manner in which they conduct internal investigations abroad.
A recent landmark decision from the United Kingdom’s High Court of Justice, a court of first instance, demonstrates this troubling trend. In Director of Serious Fraud Office v. Eurasian Natural Resources,3 the London Court ruled that documents prepared during an internal investigation—or at least the early stages of such an investigation—are not protected by any privilege.
