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Monday, December 17, 2012

Increasing Role for Legal Professional Privilege in EP Process

In light of the inter-relationship and overlap between EP and legal and regulatory requirements, an integrated approach to EP implementation with environmental and social legal due diligence is likely to emerge as a best practice trend. One significant advantage of doing so is the potential role that legal privilege can play in the EP implementation process.
With the possibility of legal claims arising from EP implementation come risks that the EP implementation process could be discoverable in any future legal proceeding. Such risks can only be mitigated if privilege can be asserted over documents or communications. This can be done through the use of external legal counsel in all aspects of the EP process, but particularly in the independent monitoring and review phases for Category A and B projects.

Legal professional privilege can allow communications and documents to be legally privileged and therefore kept confidential in the event of future litigation. It can also allow for more open deliberation about the environmental and social risks of the project, without fear that such deliberations would become evidence in a future legal dispute. EPFI must begin to consider these legal strategies in advance of actual claims.  If legal privilege is not obtained when a document is created any possible privilege over it will be lost.  This reality reinforces the benefit of having external legal counsel involved throughout the EP implementation process as only legal counsel (usually external legal counsel as opposed to in-house counsel) are able to confer legal professional privilege in this way.

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