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The Champion

March 2019 , Page 22 

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An American Lawyer in Queen Elizabeth’s Court: How NACDL Highlighted the International Consequences of an English Court Case

By Steven F. Molo, Eric R. Nitz, and Ekta R. Dharia

In May 2017, the U.K. High Court of Justice, Queen’s Bench Division, handed down a decision that shook the white-collar criminal defense bar: Attorney work papers, including witness interview memoranda, were not protected by the “litigation privilege” under U.K. law. The High Court’s decision in Eurasian Natural Resources Corp. v. Director of the Serious Fraud Office (“ENRC I”) thus held that a governmental law enforcement agency like the Serious Fraud Office (“SFO”) — which investigates and prosecutes complex fraud, bribery, and corruption — could compel disclosure of these materials.

The decision threatened to fundamentally alter the approach of attorneys tasked with conducting internal investigations into suspected corporate wrongdoing. With their work papers and other material potentially discoverable by U.K. law enforcement, attorneys conducting internal investigations would certainly think hard about the scope of any investigation and the extent to which they reduced to paper thei

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