The government agency will request information during the dawn raid, for example paper records, computers, email inboxes, telephones, cloud environments, etc.
This information may be subject to the right of non-disclosure of lawyers, civil-law notaries or domestic or foreign inhouse counsel. These are professionals bound by a duty of confidentiality. The information is also referred to as privileged information.
This is information (i) exchanged with or (ii) drawn up for the professional in question for the purposes of their work. For example:
– emails and letters from or to the professional bound by a duty of confidentiality;
– advice provided by them;
– reports and minutes of conversations with them;
– their invoices;
– company notes, memos, etc., intended for them;
– internal representations or summaries of their advice.
It is initially up to the professionals in question and the courts to decide which information is privileged. The government agency has no say in this.
The government agency is not allowed to examine, copy or confiscate any privileged information. There is no such thing as ‘more or less’ privileged. In other words, once information is privileged, the agency is not allowed to examine it.
If the government agency nevertheless threatens to examine, copy or confiscate this type of information, (i) tell it that the information is privileged and (ii) object.
Government agencies often ignore objections. Physical data (on paper) will then be ‘quickly scanned’. This way, the government agency checks whether the information is privileged. Digital information will often be copied anyway. The company should then repeat its objection and state that it will use the opportunity to specify at a later time which data the government agency was not allowed to examine/copy and that the company will do so within a reasonable period.
The company can increase the chances of preventing the examination, copying or confiscation of privileged information by internally separating it from other information, for example in secured and shielded folders, or by clearly earmarking the information as such.
