Controlling document creation and securing privilege
Documents relevant to an incident (whether these are contemporaneous documents already in existence or are created as part of the incident response) may need to be produced in subsequent civil litigation such as follow-on damages claims, arbitral proceedings, or in the course of a regulatory/criminal investigation. This could occur in the jurisdiction where the incident took place, and/or in other jurisdictions, and could result in the documents becoming public.
(a) Existing documents
If litigation or a regulatory investigation is anticipated, you should take steps to:
- identify and segregate any documents that are potentially relevant to the crisis
- suspend existing document destruction procedures for all potentially relevant documents (to be widely defined, at least initially). If in doubt, suspend destruction and keep a record of all instructions to suspend
- instruct staff members to retain and protect any potentially relevant documents in their possession
(b) New documents (paper, electronic and/or other formats) created as part of the incident response
Due to the risk of documents becoming public at a later point in time, the creation of new documents should be kept to a minimum. As far as possible, any documents you do create should not contain anything that might harm your prospects in any subsequent investigation or proceedings:
- see practical tips for managing the creation of new documents
- see sample draft message that sets out instructions for preserving documents and managing document creation
Obtaining and preserving privilege
In some jurisdictions, documents that are legally privileged can be withheld from production in any subsequent civil, criminal or regulatory proceedings/investigations. You should consider in which jurisdictions the production of documents concerning the crisis may subsequently be sought.
The rules on document production and legal privilege vary substantially from jurisdiction to jurisdiction. In some, privilege is not recognised as a legitimate basis for withholding production. In many others, the availability of legal privilege varies according to whether legal advice is sought in relation to litigation (or anticipated litigation), or for non-litigious reasons. For example:
- in many common law jurisdictions such as the US, England and Australia the scope of the obligation to disclose documents in litigation is typically wide (meaning the scope of legal privilege protection is also wide)
- in civil law jurisdictions (for example France and Germany), the scope of document disclosure is narrower and so is the protection afforded to communications with lawyers
- in other markets, such as Japan, there is a relatively low risk of counter-parties or third parties obtaining access to internal documents in litigation. As a result, there is no concept of legal privilege
European Commission (EC) investigations
Where infringements of European competition law are suspected, internal communications between in-house lawyers will not be privileged. This may enable the EC to demand the production of documents, or to seize them in a dawn raid. This is a possibility even when documents are held in a jurisdiction, such as England, where they would be privileged under local law.
In the context of European competition law, no privilege attaches to communications by lawyers who are not qualified to practice in an EU Member State.