United States: Before You Press Send: Protecting Privilege And Complying With Limitations On Data Dissemination When Responding To An Investigative Request

Global Crisis Management Series:  This post is part 12 in a series concerning topics further elaborated on in Cleary Gottlieb's Global Crisis Management Handbook—a desk reference for spotting issues and avoiding common mistakes when faced with a crisis.  The current version is available  here.

One critical issue to consider in responding to an investigative request is whether by producing the requested data, the company will be waiving a privilege or violating legal confidentiality obligations, including data privacy restrictions.  To avoid inadvertently waiving protections over the company's information or violating any legal restrictions on the production, companies should consider whether any of the following are implicated by the information requested by the authority:

Attorney-Client Privilege and Attorney Work Product.  Investigative requests may ask for documents and other materials about broadly-worded topics, some of which implicate legal advice the company received from in-house or external counsel.  While the topics of that legal advice may technically be responsive to the authority's request, companies can limit or prevent disclosure of privileged information, as materials covered by either attorney-client privilege or attorney work product need not be disclosed in response to a compulsory request.  However, consideration of these protections at the outset is critical as they may be inadvertently waived.

In the United States, attorney-client privilege protects against disclosure of communications between a lawyer and client made for the purpose of seeking or providing legal advice, and extends to communications made during the course of an internal investigation between a company's employees and the company's counsel.1  The work product doctrine protects against disclosure of documents (or other tangible items) containing mental impressions, opinions, or legal theories prepared in anticipation of litigation.  Privilege and work product protections differ by jurisdiction, however, and it is therefore important to be sensitive to choice-of-law issues and the applicable substantive law of privilege in investigations involving legal advice that touches foreign jurisdictions.

In some cases, it may be in a company's strategic interest to disclose privileged information to the requesting authority, for example, in order to support an advice of counsel defense.  Such decisions should be made carefully, however, as an intentional waiver of privilege over certain materials can lead to a finding that the privilege holder has waived privilege on an entire subject matter.  Entering into confidentiality or non-subject matter waiver agreements with the requesting authority can help to mitigate these risks.

If materials are withheld from a production on this basis, the authorities will often ask for a "privilege log" identifying information sufficient to conclude that the document is privileged, such as the participants in a communication and the subject matter of the document.

Confidential Supervisory Information.  Financial institutions responding to investigative requests should be mindful of limits on the disclosure of information related to examinations by prudential regulators.  Financial institutions supervised by the Board of Governors of the Federal Reserve Bank (the "Board") may have access to confidential supervisory information ("CSI"), which is subject to the Board's regulations governing its disclosure.2  In practice, CSI covers information related to the examination of a financial institution by a bank examiner.3  Relevant bank examiners include the Board, the Office of the Comptroller of the Currency, the New York State Department of Financial Services, the Consumer Financial Protection Bureau, and the Federal Deposit Insurance Corporation, among others.  For example, because all CSI remains the property of the Board, no supervised institution or individual to whom the information has been made available may disclose such information without the prior written consent of the Board's general counsel, unless a specified exception applies.4

Blocking Statutes or Restrictions on Cross-Border Data Transfers.  Where an investigative request seeks information located in foreign jurisdictions, the recipient's ability to respond may be restricted by foreign laws that limit the cross-border transfer of certain information or require notice to foreign authorities before such transfers are made.  These limitations may include: (i) foreign blocking statues that prohibit exporting documents for use in judicial or administrative proceedings without government consent;5 (ii) data privacy laws that similarly restrict cross-border access to information stored in certain countries, particularly in the EU;6 and (iii) requirements that certain foreign authorities be notified of a request that implicates data or documents stored in their jurisdiction and/or that the information be provided through the local authority as a conduit.7

Like the other potential restrictions discussed in this post, companies should consider the relevance and importance of blocking statutes or other similar restrictions at the very beginning of an inquiry.  Ideally, these issues should be analyzed before any documents are collected, as  decisions about where to collect and review data can have ongoing consequences throughout the investigation and may impact the company's ability to argue that the production of such materials is restricted during later stages of the investigation.  This is especially important for companies with global operations that are subject to different, and possibly inconsistent, legal regimes across jurisdictions.  Depending on the particular foreign laws and requirements at issue, such restrictions may also provide an opportunity for the company to negotiate narrowing the scope of a request, in order to quickly get the investigating authority at least some of the information it seeks or in the interest of obtaining approval from the foreign authority to facilitate the production of the information sought.

Personally Identifiable Information.  Some information not covered by a statutory restriction or other legal doctrine may still be protected from disclosure, such as personally identifiable information ("PII"), which can be used to identify an individual in context (for example, name, social security number, passport number, driver's license number, address, or phone number).  Authorities may be amenable to a company redacting PII if it is irrelevant to the purpose of their investigation.  In addition, where PII is produced, there may be statutory limitations on further disclosure by the relevant authority,8 or procedures by which the company can request confidential treatment by the authority.9  Companies should be mindful, however, that prohibitions against disclosure may not apply where such disclosure is required by the Freedom of Information Act, or where another federal, state, or local government requests such information for purposes of civil or criminal law enforcement.10

Confidentiality Agreements.  Companies should also consider the terms of confidentiality agreements with clients or customers that restrict their ability to disclose certain information.  While standard non-disclosure agreements may include contractual provisions accounting for the possibility of compulsory requests, companies should further analyze such agreements for applicable notice provisions before documents are produced.  In addition, companies asked to disclose information subject to confidentiality agreements may be able to rely on common law provisions that provide exceptions to confidentiality for government requests.  Certain investigating authorities may also be amenable to companies seeking confidential treatment of such information in order to limit further disclosure and collateral liability under the terms of an applicable contract.11


1 Upjohn Co. v. United States, 449 U.S. 383, 395 (1981).

2 See generally 12 C.F.R. § 261.

3 See 12 C.F.R. §§ 261.2(c)(1)(ii)-(iii).

4 See 12 C.F.R. § 261.20(g). Upon request, the Board may make CSI available to federal or state financial institution supervisory agencies and may authorize other discretionary disclosures of CSI as necessary.  Id. at §§ 261.20 (c), (d), (e).

5 3 Robert L. Haig, Business and Commercial Litigation in Federal Courts § 21:97 (4th ed. 2017).

6 See Council Directive 95/46, of the European Parliament and of the Council of 24 Oct. 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L. 281) 31; General Data Protection Regulation (GDPR) 2016/679, 2016 O.J. (L. 119).

7 For example, the UK Financial Conduct Authority sets forth procedures by which information stored in the UK must be produced pursuant to a Notice of Requirement.  See Financial Services and Markets Act 2000 § 169 (Investigations in support of overseas regulator), § 195 (Exercise of power in support of overseas regulator).

8 See, e.g., Privacy Act of 1974, 5 U.S.C. § 552a (governing disclosure of PII).

9 See, e.g., 17 C.F.R. § 200.83 (setting forth a procedure by which those submitting information to the SEC may request that it not be disclosed pursuant to a request under the Freedom of Information Act).

10 5 U.S.C. §§ 552a(b)(2), (7).

11 See, e.g., Sec. Exch. Comm'n, Enforcement Manual § 4.3.1 (2017), https://www.sec.gov/divisions/enforce/enforcementmanual.pdf (The SEC Enforcement Division may enter into confidentiality agreements with a company subject to investigation, by which the SEC would agree not to assert privilege waiver for documents produced by the company that it would otherwise withhold as privileged.  In addition, the SEC might agree to maintain confidentiality over certain materials provided by a company, "except to the extent that the staff determines that disclosure is required by law or that disclosure would be in furtherance of the SEC's discharge of its duties and responsibilities.").

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions