The UK's SFO has provided some detailed guidance regarding its expectations of companies wishing to defer or reduce their fines via cooperative measures during investigations. 

"Cooperation means providing assistance to the SFO that goes above and beyond what the law requires."

The new guidance specifically addresses:

  1. Preserving and Providing Material
  2. Witness Accounts and Waiving Privilege

That second prong may prove difficult... Corporate governance leaders may be conflicted in disclosing information that may be good in reducing a corporate penalty, but potentially exposes them to individual liability or reputational risk.

"One potential area of concern for lawyers is the agency’s stance on legal privilege, which protects certain communication between law firms and their clients. Companies and their counsel sometimes have balked at providing notes from interviews with employees who are considered witnesses within the context of an SFO probe, according to lawyers.

Cooperation is one of seven factors the agency considers when deciding whether to offer a deferred prosecution agreement to a company. Companies that don’t waive privilege on witness interviews won’t be considered cooperative when the agency is deciding whether to award a deferred prosecution agreement, the guidance said.

Lawyers on Tuesday interpreted that to mean that companies that don’t waive privilege on witness interviews could risk being ineligible for a deferred prosecution agreement."