Investigations Round-up – November 2023

Investigations Round-up – November 2023

Overview

Welcome to the inaugural edition of our investigations newsletter, bringing you up-to-speed on the latest trends and developments in this ever-evolving area. 

In this edition, we consider the trend towards greater support for those participating in investigations.  We also pick out two interesting recent cases, the first illustrating how easily privilege can be lost without the right safeguards, and the second illustrating the tensions which can arise when both a corporate and certain of its employees are under parallel investigation by a regulator.

We hope that you enjoy reading this round-up, and that you will share it with any of your colleagues who may find it useful.

Toby Robinson and Adam Wyman

Trends and Developments

Market trend: supporting those involved in investigations

Cases

Case law: privilege and investigation reports

Key takeaways

  • Consider from the outset whether you want the output from your investigation to be open, or protected by privilege.

  • If the latter, obtain advice on whether privilege is likely to apply in the circumstances, and how best to structure the investigation to maintain it.

  • Ensure that all those involved in the investigation understand the tests for when privilege applies, when it doesn't, and how it can be lost.

  • Exercise caution before sharing privileged materials (such as legal advice) beyond the original recipients.

  • Don't reference privileged materials (such as legal advice) in non-privileged documents (such as an open investigation report).

Case law: tensions in parallel investigations of corporates and individuals

Practical tips

  • Tensions can arise where employees and their employers are under parallel investigation by a regulator.

  • Ensure where possible that the employees under investigation have separate legal representation.

  • Establish a clear channel of communication with those representatives, to the extent appropriate.

  • Consider carefully at the scoping stage of the investigation precisely what is being investigated and whether the allegations against individual employees can be divorced from the allegations against the corporate.

Our Investigations Practice

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