In its recently published Çiçeksepeti decision,1 the Board assessed whether certain documents collected by the case handlers during the onsite inspection are within the scope of attorney-client privilege principle.
The Board launched a full-fledged investigation against Çiçeksepeti Internet Hizmetleri A.S. ("Çiçeksepeti ") on June 4, 2020 (20-27/335-M). Within the scope of the investigation, the case handlers collected certain documents during the onsite inspection they carried out at the premises of Çiçeksepeti. Çiçeksepeti alleged that a three-page document among the acquired correspondence and files fell within the scope of attorney-client privilege. Thus, the document was collected in a sealed envelope in order for the Board to decide on the relevant matter.
The Board referred to its previous decisional practice about the evaluation of attorney-client privilege and stated that first of all it should be determined whether the attorney is in employment of the undertaking (if there is an employment relationship between the undertaking and the attorney, the Board rejects the return of the requested documents). If a document includes correspondence between the undertaking and an independent attorney (who is not an employee of the undertaking), the Board then evaluates whether the document is related to the undertaking's use of its right of defense.
To put its two-staged cumulative approach/test into further context, the Board then referred to its relatively recent decisions on the application of attorney-client privilege principles before examining the merits of the case. To that end, in terms of the first criteria, the Board stated that in its Huawei decision,2 it rejected the request for the return of the document collected during the onsite inspection since the relevant documents concerned a correspondence between the undertaking and its in-house counsel/attorney. The Board decided that the documents fell outside the attorney-client privilege since they did not include correspondence between an undertaking and an independent attorney. With regard to the second criteria, the Board underlined its Warner Bros decision,3 where the sixteen-page document collected during the on-site inspection was indeed correspondence with an independent attorney but as it pre-dated the initiation of the preliminary investigation, such document was not directly related to the exercise of defense rights. Therefore, the Board still resolved that the document would fall outside the attorney-client privilege.
In this respect, the Turkish Competition Authority ("Authority ") requested information from Çiçeksepeti on whether the attorney mentioned in the relevant three-page document is an independent attorney. Çiçeksepeti acknowledged that the attorney is an employee of Çiçeksepeti and submitted copies of their employment documents such as the social security declaration and recent payslip. In line with Çiçeksepeti's responses, the Board decided that the document cannot be considered as an independent attorney correspondence, and thus falls outside attorney-client privilege. In this respect, the Board rejected the request for the return of the three-page document collected during the onsite inspection. This is in keeping with the Board`s similar assessments where it decided that documents would not be considered within the scope of the attorney-client privilege principle if there is an employment relationship between the investigated undertaking and the relevant attorney.4 To that end, this recent decision further bolsters the settled approach of the Board regarding the assessment of the two criteria for the attorney-client privilege.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in March 2021. A link to the full Legal Insight Quarterly may be found here
Footnotes
1. The Board's Çiçeksepeti decision dated July 2, 2020 and numbered 20-32/405-186.
2. The Board's Huawei decision dated November 14, 2019 and numbered 19-40/670-288.
3. The Board's Warner Bros decision dated January 17, 2019 and numbered 19-04/36-14.
4. The Board's Dow decision dated December 2, 2015 and numbered 15-42/690-259; The Board's Sanofi decision dated April 20, 2009 and numbered 09-16/374-88; The Board's CNR decision dated October 13, 2009 and numbered 09-46/1154-290.
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