Discovery Considerations in Cross-Border Investigations

The knee jerk reaction after receiving an inquiry from a regulator in another country may be to begin processing and producing every relevant communication as quickly as possible, in order to demonstrate your client’s willingness to cooperate and the comprehensiveness of your review. But most regulators don’t want everything, and appreciate a more exacting approach. Some regulators do not want any document production at all, and prefer reports on what was found in your review of documents instead.

What you provide to one regulator may have to be provided to other regulators, depending on their jurisdiction, or it may be subject to production in civil litigation once provided to a regulator. Also, data protection laws vary by country, and those laws may affect data preservation for documents and voice recordings when responding to a regulator in a country where the data did not originate.

Different jurisdictions provide different privilege protections. For example, in the U.S., withholding communications with in-house counsel providing legal advice about a corporate merger is a standard, defensible decision. If the company is also responding to an inquiry from the European Commission, those same documents may need to be produced, unless outside counsel also participated in those communications.

Governmental inquiries have many twists and turns that are beyond your control. To limit your client’s exposure in cross-border investigations, it’s important to consider and plan for discovery challenges and consequences at the outset, to control what you can.