Page 31 - American College of Trial Lawyers Federal Criminal Procedure Committee 2020 Update: Recommended Practices for Companies and Their Counsel in Conducting Internal Investigations

A. Attorney-Client Privilege

In the U.S., Investigatory Counsel will often try to bring the entire investigation
(including the work of accountants and other consultants) within the scope of the attorney-client
privilege. However, the attorney-client privilege looks markedly different in the international
context, where it is often applied more strictly (if it applies at all). For example, in March 2017,
German authorities raided the German offices of Jones Day to obtain documents related to the firm’s
representation of Volkswagen AG (“VW”). Jones Day had represented VW since 2015 when it
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began conducting a comprehensive internal investigation into the VW diesel emissions scandal,
which included VW’s affiliate, Audi AG. After lengthy court battles over the propriety of the seizure
and the scope of the attorney-client privilege to the case, Germany’s Federal Constitutional Court in
July 2018 declined to extend privilege protections on constitutional grounds. In doing so, the court
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concluded that a foreign law firm lacks standing to bring a constitutional complaint because it is not a
domestic legal person under the German Constitution. As to the attorney-client privilege, the court
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noted that it only protects documents and data if the relationship is between a person/corporation
formally charged with a criminal offense and his/its lawyer – not an affiliate of a corporate client.
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Because Audi AG was not Jones Day’s client and because Jones Day was not engaged to represent
VW in a criminal investigation in Germany (VW had engaged Jones Day only to conduct an internal
investigation), VW’s constitutional complaint was dismissed. The Court declined to place an
absolute prohibition on the use of material that English and U.S. lawyers would consider protected
by the privilege because it “considerably restricts effectiveness of law enforcement as required under
constitutional law” and would “only [be] feasible in exceptional circumstances” like “an interference
with the scope of protection of human dignity.”
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At minimum, the 2018 German ruling demonstrates the importance of analyzing
local conceptions of the attorney-client and work product privileges at the outset of an investigation.
Companies should be aware that law firms remain subject to the local law in which their law firm’s
offices are located. To the extent possible, multinational companies should consider keeping their
privileged information in jurisdictions with the strongest privilege protections (like the U.S.) or risk
exposing sensitive documentation.

B. Data Privacy and the GDPR

After considering whether and to what extent a foreign country’s privilege laws will
protect the investigation, Investigatory Counsel should also consider where relevant documents are

number of threshold issues on a summary basis that Investigatory Counsel will have to address.
87 See Jack Ewing and Bill Vlasic, German Authorities Raid U.S. Law Firm Leading Volkswagen’s Emissions Inquiry, New York
Times, Mar. 16, 2017, available online at https://www.nytimes.com/2017/03/16/business/volkswagen-diesel-emissions-investigation-
germany.html.
88 See 2 BvR 1405/17, 2 BvR 1780/17, 2 BvR 1562/17, 2 BvR 1287/17, 2 BvR 1583/1; see also “Constitutional complaints
relating to the search of a law firm in connection with the ‘diesel emissions scandal’ unsuccessful,” Bundesverfassungsgerict, The Federal
Constitutional Court, Jul. 6, 2018, available online at https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2018/
bvg18-057.html.
89 Id.
90 Id.
91 Id.

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