Choose the money or the box - Immunity and waiver of privilege in the ANZ share placement criminal cartel prosecution

Sherrilyn Kenyon says that when you dance with the Devil, you don’t get to pick the tune.

J P Morgan investigated potential cartel conduct by interviewing its employees. It decided to seek immunity from prosecution from the ACCC and CDPP, which required it to cooperate fully with their investigation to obtain and maintain immunity.

Its lawyers thought it was cooperating fully by providing to the CDPP partial disclosure of what they asserted was relevant from initial witness interview notes/outlines taken for JP Morgan to obtain legal advice, but the CDPP pressed further. JP Morgan refused to provide the outlines in full but, torn by the need to balance protecting confidentiality and privilege with its desire to maintain immunity from prosecution, its lawyers read portions of them slowly out loud to the CDPP so that they could take verbatim notes.

The Court held on 14 May 2021, in Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd [2021] FCA 511, that the legal advice remained privileged and, in obiter, that compliance with the ACCC’s immunity policy alone did not result in waiver of privilege.

However, the Court ordered that JP Morgan produce the entirety of the outlines to the CDPP and accused in the CDPP’s criminal cartel prosecution of Deutsche Bank, Citigroup and others.

J P Morgan had made a conscious and voluntary decision to disclose portions of its confidential documents. It could have chosen to maintain the privilege and risk that the immunity would be withdrawn, but considered that its commercial and strategic interests should be advanced by making the disclosures. In doing so it acted inconsistently with maintaining, and waived privilege over, the outlines (see in particular [155]).

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