Does the attorney-client privilege apply to documents created during an internal investigation? This question was answered in the affirmative in a recent High Court of England and Wales matter in which the Court determined that certain documents created by RBS during an internal investigation conducted to prepare for a potential dispute with the U.K. tax authority were protected by the privilege. The decision was a sharp contrast to the High Court’s prior holding in the ENRC
case where it determined that privilege was unavailable for documents created during a similar investigation. In a guest article, Boies Schiller partner Matthew Getz and associate Prateek Swaika discuss the implications of the decision and offer practical tips for preserving privilege in the wake of the High Court precedents. See also our three-part series on protecting attorney-client privilege and attorney work product while cooperating with the government: “Establishing Privilege and Work Product in an Investigation
” (Feb. 8, 2017); “Strategies to Minimize Risks During Cooperation
” (Feb. 22, 2017); and “Implications for Collateral Litigation
” (Mar. 8, 2017).