MOrsel - It's all about the data

A recent UK case has brought into focus some of the thorny issues associated with investigations. One of the most potentially sensitive documents a company can create is an investigatory report into alleged misconduct. These documents are sometimes producible in court, not because of data protection, but because they are relevant to the legal claim being decided upon. Production can be resisted where the document is 'privileged', for example if it was produced for the sole or dominant purpose of conducting litigation. Recent cases have held that investigatory material – being inherently focused on fact-gathering rather than legal advice – is usually not privileged from disclosure into court on this basis.

In Bilta v RBS, the Court held that a letter issued by the HMRC was comparable to a 'letter before action', which is a formal document used in commercial litigation. Transcripts of individuals interviewed as part of the process were held to be privileged from disclosure, as they were produced for the sole or dominant purpose of expected litigation. This represents a slight relaxation in approach from previous case law.

We will be providing more detailed analysis of the case in our next newsletter. As always, if in doubt, do seek advice about how to handle an investigation.