Beware What You Share: Privilege Waiver Risks in Investigations

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…

Read more detail on Recent Administrative Law posts –

This entry was posted in Administrative law and tagged , , , , , . Bookmark the permalink.

Leave a Reply