In the context of criminal proceedings, documents may generally be subject to seizure. However, specific protections apply to documents held by attorneys, particularly when such documents are connected to the right of defense. In particular, if an attorney has been formally appointed as defense lawyer in ongoing criminal proceedings, any material held by them and related to the defense strategy benefits from legal privilege and is protected under Italian law. This protection also applies to materials collected through formal defensive investigations pursuant to Article 391-nonies of the Italian Code of Criminal Procedure, when the attorney has been granted a special power of attorney to carry out such activities.
When a confidential document – even if physically held by the client – has been prepared by the defense attorney (or an expert appointed by the attorney) in connection with ongoing or anticipated criminal proceedings, it may be protected by legal privilege as part of the right of defense. This includes documents drafted as part of formal defensive investigations under Article 391-nonies of the Italian Code of Criminal Procedure, or in preparation for litigation. If the public prosecutor attempts to seize such a document, the attorney may object and later challenge its admissibility, arguing that it constitutes unlawfully obtained evidence gathered in breach of the defendant'’s right to a fair trial.In the context of civil litigation, in contrast to common law jurisdictions, the disclosure of documents is considered an exceptional measure. Only in certain limited cases and under specific conditions, either upon request of the parties (i.e., plaintiffs or defendants) or because the judge believes that it is crucial to collect certain documents, the judge may order the plaintiffs, defendants or third parties, to file documents with the Court. It must be noted that under Italian law judges may only order the submission of documents: (i) which judges deem necessary to resolve a crucial issue of the case, and only when such issue may not be resolved in a different way; and (ii) when such documents have been clearly identified and it is certain that they exist. In any case, disclosure is not permitted to circumvent the rules concerning the burden of proof.
When a governmental regulator requires a lawyer to disclose documents, under the Professional Code of Conduct, the lawyer can refuse to provide any confidential documents covered by professional secrecy. In some instances, the Italian antitrust authority has simply seized the privileged document without regard to its nature, whilst in other cases the same authority has not physically seized the document but nonetheless read its contents during the inspection in order to get a picture of the purpose of the legal opinion and possibly clarify some relevant issues or facts. In order to avoid such situations, it is common practice amongst antitrust practitioners to have an attorney closely shadowing inspectors from the Italian antitrust authority during all phases of an investigation so to be able to immediately oppose the seizure of privileged documents protected by professional secrecy.
Under Italian law, there is no specific statutory provision expressly addressing the privilege status of interview notes. However, according to established principles and prevailing case law, notes of interviews with employees or third parties may be protected by legal privilege when they are connected to the right of defense. This includes documents prepared by an external lawyer formally appointed as defense lawyer, either in the context of ongoing criminal proceedings or as part of early-stage defense efforts, including formal defensive investigations conducted pursuant to article 391-nonies of the Italian Code of Criminal Procedure.
Conversely, documents prepared by in-house lawyer are generally not protected by legal privilege in criminal matters, as Italian law prohibits in-house lawyers from acting as defense lawyer in criminal proceedings. As such, interview notes prepared internally by company lawyers cannot benefit from the same protections.
Some commentators have argued that privilege may attach to interview notes even when certain formalities (such as the case number) are missing, provided that the connection to the defense strategy is clear and demonstrable.