IS THERE A FUTURE FOR SELF-EVALUATION OR SELF-CRITICAL PRIVILEGE?
Organisations are sometimes required to launch an internal investigation to determine the specific facts of a given occurrence or to conduct an internal audit to assess whether the organisation complies with applicable regulations or internal policies. Such investigation or audit may be conducted voluntarily. It may also be mandated by applicable law.
The facts prompting the need for an internal investigation or audit may also lead to civil or penal proceedings that may be commenced by third parties or a regulator. Documents generated during an internal investigation or audit review usually deal with the very situation that is the basis of the lawsuit. These documents may be of great relevance and thus discoverable.
Investigation or audit reports may, however, be quite harmful to the organisation’s interests. These documents may underline problematic internal situations. They may also point to potential violations of the law committed by the organisation or its employees. The reports may even recommend changes in the internal process of the organisation to prevent problematic situations in the future and limit the organisation’s potential exposure. In fact, the whole purpose of the document may be to self-evaluate or self-criticise the organisation.
Unless a lawyer was involved in the preparation of the documents, it may be difficult to claim solicitor-client privilege over the reports. Similarly, given that these documents often serve multiple purposes, it is sometimes difficult to claim litigation privilege as the documents were not always created for the ‘dominant purpose’ of preparing for litigation.
Apr-Jun 2015 issue
Norton Rose Fulbright