New Guidance on Privilege in Internal Investigations
23 March 2012
English law recognises two species of privilege. The one, legal advice privilege, extends to any communications between a lawyer and client for the purpose of obtaining legal advice. The other, litigation privilege, extends additionally to communications with third parties but only where for the dominant purpose of providing evidence or information in connection with contemplated litigation. Litigation privilege is not dissimilar to the US work product doctrine though there are differences to trip up the unwary. For one thing, if litigation privilege applies there is an absolute right not to disclose the communication (rather than the slightly more limited right that exists in the case of the work product doctrine).