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Bree Taylor, Partner, Fladgate LLP (firstname.lastname@example.org)
Steven Mash, Partner, Fladgate LLP (email@example.com)
The High Court recently ruled, in a landmark case brought by the Serious Fraud Office (SFO), that the Eurasian Natural Resources Corporation (ENRC) must hand over documents generated by an internal investigation by the company, including notes taken by lawyers of interviews with ENRC’s employees.
The SFO’s application was made in the course of its ongoing criminal investigation relating to ENRC’s activities in Kazakhstan and Africa. As part of its investigation, the SFO sought to compel ENRC to produce a range of documents which ENRC claimed were protected by litigation privilege. However, ENRC’s argument failed at the first hurdle.
This decision is likely to have significant consequences for the conduct of corporate internal investigations. It will be harder for corporations to claim litigation privilege over internal documents, even where they have been prepared by lawyers.
The purpose of litigation privilege is to enable someone to prepare for anticipated litigation by protecting from disclosure documents prepared for that purpose. Litigation privilege will apply to communications or documents where the following conditions are satisfied:
This decision follows the recent trend in England towards limiting the ambit of privilege and has made it more difficult for companies conducting internal investigations into possible criminal conduct to be claim litigation privilege over documents produced in the course of that investigation. As a result, companies should be careful when considering an internal investigation and should seek advice from experienced solicitors about how best to plan and execute that investigation.
SFO v Eurasian Natural Resources Corporation  1017 (QB)