In terms of global anti-bribery compliance, a common problem is becoming aware of information of questionable conduct on the part of foreign officials or others in the course of conducting due diligence or even an internal investigation. This information may need to be conveyed to others involved with the due diligence or the internal investigation. It may also need to be conveyed, discussed, or analyzed with the client, with others within a law firm, or possibly other individuals or organizations.
How and where that information is conveyed can pose a legitimate and potential danger to the client and others, including those involved with the due diligence or internal investigation. It must always be kept in mind that information about questionable conduct may not be well received. This is particularly so in the country where the questionable conduct is believed to have occurred or is occurring.
The mode of communication, whether by email, even encrypted, or by telephonic or other means may not be secure. Simply assuming or even designating the communications as privileged or confidential or attorney work product will not suffice. What the standard may be in another country may not be the same as what one is accustomed to in his or her own country. Moreover, what may be permissible in a legal proceeding is unlikely to have any meaningful impact in dealing with the realities in some parts of the world.
Countless reasons exist for outsiders to seek access to those communications. For example, local government officials may fear what is being learned or competitors may seek to take advantage of the information. Regardless of the reason, unlike exchanging information in the context of one’s own domestic environment, exchanging information across borders or within certain parts of the world can expose others, and possibly one’s self, to danger. Situations can and do arise where offices are broken into and people are put in physical danger.
Unquestionably, the challenges posed in conducting due diligence or internal investigations in foreign or unfamiliar settings present a host of frustrations. But it cannot be overstated as to the serious dangers posed by unsecure communications. Great care must always be exercised in determining what may be the safest and most secure means of communicating sensitive information.
