WAIVING PRIVILEGE IN REGULATORY INVESTIGATIONS: A LOOK AT CANADA AND ENGLAND
Over the past 10 years, global regulatory and anti-corruption scrutiny, as well as enhanced interjurisdictional cooperation between law enforcement authorities, has steadily intensified. Due in part to limited resources and the desire to encourage good corporate citizenship, opportunities for corporations to cooperate and negotiate alternative agreements with regulators have increased in tandem.
As a result, corporations are increasingly cognisant of the value of conducting thorough internal investigations, and the benefits of meaningful cooperation with regulators and law enforcement. However, investigations – both internal and external – can often result in the discovery, creation and disclosure of highly confidential and legally privileged material. The question, then, is how corporations can effectively cooperate with regulators, assist with investigations and negotiate resolutions, while maintaining privilege over their material as against third parties and other authorities.
With a focus on Canada and England, this article examines the risks and consequences for corporations that may be the subject of an investigation.
Assisting with an investigation without waiving privilege
While they differ in their approach, both the Royal Canadian Mounted Police (RCMP) and UK Serious Fraud Office (SFO) strongly encourage companies to assist with investigations that concern them, including self-disclosure, and sharing documents and information. In this context, corporations may need to decide whether to disclose privileged materials. Knowing the legal consequences of doing so prior to making that decision is crucial.
Oct-Dec 2023 issue
Norton Rose Fulbright Canada LLP