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English Court of Appeal preserves litigation privilege

Jaclyn Jaeger | September 13, 2018

In a significant win for companies and their counsel everywhere, the English Court of Appeal in a landmark decision effectively preserved the boundaries of litigation privilege for companies investigating allegations of wrongdoing.

On Sept. 5, in SFO v. ENRCthe Court of Appeal unanimously overturned last year’s highly controversial initial High Court judgment in favor of the Serious Fraud Office. That ruling gave the SFO the right to legally obtain volumes of documents that mining company ENRC argued were protected from disclosure by litigation privilege, because they were generated during the company’s own internal investigation into allegations of fraud and corruption.

The documents at issue included notes from interviews conducted by legal advisers and documentation of ENRC’s books and records created by ENRC’s forensic accountants. As part of a formal...

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