Information requests from regulators can raise a host of complex legal and practical issues for entities and individuals.
Our experts in this field have set out the key considerations around the production of information to UK and US regulators, including information-gathering powers, privilege issues and increased global data sharing.
Many UK regulators have the power to compel production of information relevant to their investigations. Failure to comply with these requests can result in fines and, in some cases, imprisonment. In the US, most federal agencies can issue administrative subpoenas to require document production without prior approval from a court or grand jury. Non-compliance can result in the imposition of contempt sanctions and, in some cases, the assessment of civil penalties.
Corporate senior management should be aware of these potential penalties when responding to such information requests.
Regulators may initially seek voluntary productions. The response to any such request requires careful consideration as voluntary productions may raise competing confidentiality or data protection obligations.
Documents may be withheld on grounds of privilege, but the application of the rules on privilege to determine which documents are protected requires careful consideration. Our chapter covers this complicated issue in more detail.
Under mutual legal assistance treaties, UK and US regulators can request certain foreign prosecutors to gather and provide information from persons and sources abroad (or be the subject of such a request). In recent years, we have seen a number of large cross-border investigations in which several national authorities have co-operated and shared information.
This sort of data sharing is only expected to increase given the growth of extraterritorial jurisdiction and common compliance programmes, and with recent important UK Supreme Court decision, UK authorities will be looking to use such international co-operation even more as their own powers have limited extra-territorial effect (see our blog here).
Clients facing potential cross-border investigations should immediately consider which jurisdictions may be involved. Data sharing between authorities may influence decisions on self-reporting and considerations on how to harmonize the substance of document production to these authorities.
Given the growing powers of global authorities to require document production, the number of document production requests both domestic and cross-border is only increasing. Dealing with these requests requires adept management of the legal risks in all relevant jurisdictions. Our knowledge and experience of these considerations, as well as our global platform, make Norton Rose Fulbright well placed to advise clients expertly on how best to respond.
GIR’s ‘Practitioner’s Guide to Global Investigations’
Norton Rose Fulbright has recently written a more detailed chapter on the production of information to authorities and information requests in the fifth edition of Global Investigations Review’s ‘Practitioner’s Guide to Global Investigations’ (available here).
With thanks to Fran Garvey for her contribution to this blog post.