18 NYSBA NY Business Law Journal
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Winter 2017
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Vol. 21
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No. 2
The British Are Coming!
At issue in The RBS Rights Issue Litigation8 was the fruit
of a corporate internal investigation conducted in both
England and the United States by Wilmer Hale in response
to subpoenas issued to RBS by the SEC. Consistent with
Upjohn protocols, the Wilmer Hale lawyers (i) interviewed
a host of RBS employees (and former employees), (ii) gave
those individuals appropriate Corporate Miranda Warn-
ings,9 (iii) told the interviewees to treat the sessions as con-
fidential, and (iv) wrote up interview notes reflecting their
“mental impressions.” In subsequent civil litigation initi-
ated in England, the plaintiffs sought the interview notes.
Justice Hildyard, of the English High Court of Justice
(Chancery Division), ruled that the interview notes were
discoverable. Following the controversial precedent of
Three Rivers District Council and others v. Governor and Com-
pany of the Bank of England (No 5) (“information from an
employee stands in the same position as information from
an independent agent”),10 he rejected RBS’s invocation of
the legal advice privilege, ruling that the interviewed indi-
viduals were not clients. Essentially adopting the control
group approach, the Justice ruled that “only communica-
tions with an individual capable in law of seeking and
receiving legal advice as a duly authorized organ of the
corporation should be given the protection of legal advice
privilege.”
Hildyard also rejected the applicability of the work
papers privilege because—irrespective of the “mental
impressions” label in the interview notes—he was not per-
suaded that their disclosure would in fact “betray” Wilmer
Hale’s mental impressions or legal advice.11 In order to
render those two rulings, he declined RBS’s request that
the court apply Upjohn (or other relevant U.S. law) in rul-
ing on the interview notes on the ground that an English
court hearing a litigation matter in England should apply
English law on privilege issues.12 In so doing, Justice Hild-
yard recognized that the interview notes would have been
protected from disclosure under U.S. law (i.e., Upjohn).
On the heels of The RBS Rights Issue Litigation decision
(which was not appealed) came The Director of the Seri-
ous Fraud Office v. Eurasian Natural Resources Corporation.13
Unlike the prior decision—which concerned a regulatory
inquiry by a United States governmental agency, this mat-
One of the most insipid hit records of the 1960s was
Roger Miller’s “England Swings (Like a Pendulum Do).”1
In an earlier edition of this august Journal, I detailed how
differently our English “cousins” swing on the issue of
witness preparation.2 The Brits have been swinging again,
this time in a different place, and lawyers with interna-
tional, cross-border practices need to be aware and on
guard.
Internal Investigations and the Privilege
As readers of the Business Law Journal know, many
American lawyers and judges make numerous and sig-
nificant mistakes when it comes to the application of the
attorney-client privilege and attorney work product doc-
trine in the context of corporate investigations.3 But who
knew that the English judiciary could (and would) go
their American brethren one “worse” (and more)?
The law in America has been pretty clear, at least since
1981. In that year, the U.S. Supreme Court strongly af-
firmed the privilege in the corporate setting in Upjohn Co.
v. United States.4 The Upjohn Court stressed the importance
of there being “full and frank communications between at-
torneys and their clients,” and that such communications
were necessary to enable a lawyer to give “sound and
informed advice.” The Court concluded that the privilege
“promote[s] broader public interests in the observation of
law and administration of justice.” As a consequence of
those policies and interests, the Court barred disclosure to
the Internal Revenue Service of corporate counsel’s fact-
oriented communications with employees regarding an
investigation into questionable payments made to foreign
government officials; and given an attorney’s need to ren-
der “sound and informed advice,” the Court specifically
rejected prior precedent limiting the privilege to only cer-
tain employees (i.e., the “control group”).5
Somewhat akin to the American distinction between
the privilege and the attorney work product doctrine,6
the British have three separate concepts under the general
rubric of what is called the “Litigation Professional Privi-
lege” that need to be understood. The first is the legal ad-
vice privilege; that doctrine applies to confidential commu-
nications between a lawyer and her client relating to the
giving or receiving of legal advice. The second is the work
papers privilege; that doctrine applies to lawyers’ working
papers where disclosure thereof might “betray” a lawyer’s
mental impression or legal advice. And the third is the liti-
gation privilege; that doctrine applies to documents created
(by lawyers and non-lawyers) where litigation exists—or
where there is a “reasonable prospect” of litigation—and
the documents were created solely or predominantly to
deal with the litigation.7
Mad Dogs and Englishmen: Part Deux
ByC.EvanStewart
C. eVaN sTeWarT is a senior partner in the New York City office of Co-
hen & Gresser LLP, focusing on business and commercial litigation. He
is an adjunct professor at Fordham Law School and a visiting professor
at Cornell University. Mr. Stewart has published more than 200 articles
on various legal topics and is a frequent contributor to the New York
Law Journal and this publication.
