Privilege protection — its limits and good practice

Michael Roberts and Sebastian Lach

Privilege entitles you to withhold documents in litigation or other adversarial proceedings. But recent case law, mainly in Germany and the UK, has put privilege under pressure.

You can use privilege to deny regulators and prosecutors access to confidential or sensitive documents. But not every document is privileged, even those between you and your lawyer, and not every jurisdiction recognizes privilege in the same way. In a global investigation, for example, documents protected in one jurisdiction may not be protected in another. It depends on the rules that apply.

Privilege in Germany

German law grants public prosecutors vast search and seizure powers. On the other hand, there are legal grounds for protection. There is little case law that grants privilege over documents your company keeps — even if outside counsel drafted them. To be on the safe side, you should assume documents are no longer protected if kept by your company.

In contrast, attorney–client communication and documents prepared by outside counsel are protected from seizure — if kept by outside counsel. But there are two exceptions. Documents can be seized if the lawyer is suspected of criminal conduct. And lower courts have in the past allowed seizure of internal investigation documents, mainly interview file notes, even without allegations of criminal behavior against the lawyer.

Understand the prosecutors’ rights

In a case before the District Court of Hamburg, decided on 15 October 2010 (608 Qs 18/10), the court ruled the public prosecutor had the right to seize minutes of interviews with employees during an internal investigation. Although an outside law firm drafted and kept these minutes, the court concluded privilege didn’t apply because the attorney–client relationship doesn’t extend to employees.

But this dates back to before legislative changes in Germany. The District Court of Mannheim decided on 3 July 2012 (ref. 24 Qs 1/12) that documents produced during an internal investigation may not be seized if kept by outside counsel.

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