In Upjohn Company v. United States, 449 U.S. 383 (1981)—the foundational decision that guides both the scope of attorney-client privilege and how to protect that privilege in internal investigations conducted in the United States—the U.S. Supreme Court held that attorney-client privilege covers communications between all employees and the corporation’s attorneys. English courts, however, have rejected this central tenet of Upjohn. In both this and other respects, English law has taken a restrictive approach to protecting “internal investigation” documents from disclosure, as a pair of recent decisions of the High Court—Serious Fraud Office v. Eurasian Natural Resources Corporation (ENRC), [2017] EWHC 1017 (QB), and The RBS Rights Issue Litigation (RBS), [2016] EWHC 3161 (Ch)—illustrate.
English courts split the “Legal Professional Privilege” into two parts. First, the “Legal Advice Privilege,” like the attorney-client privilege in the United States, protects from disclosure “confidential communications between a party and his legal advisers for the purpose of enabling that party to obtain informed and professional legal advice.” RBS (at 38) However, the privilege attaches only to counsel’s communications with those personnel authorized to seek legal advice on the corporation’s behalf; communications with any other employees are unprivileged.
