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UK decision highlights potential privilege problems in cross-border investigations

Overview

Seven steps companies can take to maximize privilege protections under US and English law.

Key points:
• In a recent case, an English court stated that privilege did not apply to notes of employee interviews, including notes of interviews conducted in the US in response to subpoenas from a US regulator.
• As a result, companies conducting internal investigations with a connection to the UK or faced with possible follow-on civil litigation in an English court should consider how English law could affect the applicability of the privilege to protect interview notes and other information.
• Companies can take practical steps to maintain privilege protection despite the potential differences under US and English law.

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