In responding to regulatory and government investigations, firms are often faced with the question of how to balance the desire to cooperate with the need to preserve privilege over an internal investigation. Financial institutions face this question additionally in their reporting requirements to regulators, including Form U-5 filings and Suspicious Activity Reports. Two recent decisions illustrate the risk of a waiver of privilege when a firm provides information relating to witness or client interviews.
In the first case, a U.S. Magistrate Judge in the Southern District of Florida held that providing “oral downloads” of otherwise-privileged witness interview notes and memoranda to the Securities and Exchange Commission effectively waived privilege. SEC v. Herrera, 2017 WL 6041750 (S.D. Fla. December 5, 2017). The court in Herrera ruled that there is little or no distinction between (a) producing actual interview notes and memoranda to a regulator and (b) orally summarizing that written material’s meaningful substance.
In the second case, the D.C. District Court held that a written submission made to the Department of Justice, which was based on privileged conversations, constituted an implied waiver of the attorney-client privilege for the privileged communications that formed the basis of the submitted responses. In re Grand Jury Investigation, 2017 WL 4898143 (D.D.C. October 2, 2017). The court reasoned that the submitted responses contained information obtained by the attorney from her clients, that privilege was impliedly waived as to the content of the submitted responses and that the implied waiver extended to communications relating to the same subject matter.
Firms feeling pressure to cooperate by providing information should be careful about providing information beyond historical facts, and should keep in mind that it is usually safer to provide documents than information from interviews. Remember also that generally the government is prohibited by policy from asking for a privilege waiver. And understand that the waiver issues identified above can snowball into subject matter waivers of unpredictable scope. So think twice (or more) before considering providing information from witness or client interviews in any form. That said, if a firm decides after careful thought that it must cooperate by providing information from interviews, it should consider the following practice points:
- Provide “general impressions,” and present information in a broad thematic manner. Do not quote. Use hypotheticals, rather than actual questions and answers from the interview.
- Do not organize the information in a witness-specific manner. Present information in a way that particular statements cannot be attributed to specific individuals.
- Avoid relaying the contents of witness interviews in “substantial part.” Specifically, if a court conducts an in camera review, notes of the oral download should not match the original interview notes.
E.g. S.E.C v. Vitesse, 2011 WL 2899082, at *3 (S.D.N.Y. July 14, 2011); U.S. v. Treacy, 2009 WL 812033, at *2 (S.D.N.Y. March 24, 2009). As noted, this course of action is risky. Proceed with caution.