Guarding the Brief: How to Shield Privileged Advice in CCI Probes

On 31 October 2025, the Supreme Court of India (Supreme Court) in re: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues1, drew the contours of what advocate–client privilege means under Indian Law. The Supreme Court’s verdict helps put to bed some questions such as, scope of legal privilege, whether in-house lawyers in India have legal privilege etc. That said it also raised potential questions on whether “privileged documents” can indeed be accessed by the authority during an investigation or a raid.

In this regard, the relevant observations of the Supreme Court were:

“56.   When the client who has possession of a document cannot refuse to produce a document, subject only to his objection being decided by the court and cannot claim the privilege under Section 126 [of the Indian Evidence Act, 1872], there is no question of a privilege being claimed by a lawyer who has been given possession of that document by the client.

58.     Any summons issued by an officer in-charge of a Police Station to a lawyer to produce documents, relatable to his client, can only be for production before Court of the said document which shall be perused, for the purpose of deciding on the objections raised against the direction to produce and determine its admissibility, after hearing the witness who produces it and any objection raised by the client under Section 132 of the BSA [the Bhartiya Sakshya Adhiniyam, 2023], which decision shall be by the Court and not by the officer. In examining any digital equipment so produced, the Court shall ensure the presence of the lawyer and his client as also any person, the lawyer or client desires to accompany them, who is conversant in digital technology. We specifically bring in this requirement with regard to production of digital device in Court since the digital device so produced by a lawyer may contain not only the material required by the Court or the officer, but also other material in relation to his other clients.” (emphasis added)

How does it apply in the antitrust context?

The Competition Commission of India (CCI) and its investigative wing i.e., the Office of the Director General (DG) have the powers of a civil court2 (i.e., can summon and depose individuals by administering oath, can call for documents etc.). In addition to this, the DG can conduct a search and seizure operation (dawn raid). Considering the investigative powers at their disposal, one cannot downplay the significance of the Supreme Court’s decision with respect to antitrust investigations.

While it’s early days post the Supreme Court’s decision, as a general counsel / in-house lawyer one needs to be wary of the following circumstances:

A.    Investigations: it is typical for companies to conduct antitrust audits. These audits may stem from compliance programs, whistleblower complaints or in the face of an impending or an ongoing CCI investigation. At times, the scope of audits include forensic review of digital information of identified data custodians (e-mails, messages etc.). Typically these audits are undertaken by external counsels for the following reasons: the company is able to identify the problem; and maintain privilege on the advice it receives from the external counsel. While it is mostly but not widely understood that privilege is only on the “advice” and not on the documents relied by external counsel – the potential implication of the Supreme Court ‘s decision in re: CCI’s investigation are at least the following:

(i)             Call for documents: typically the requests from the DG are widely worded and would direct the concerned parties to produce all communication, as opposed to a more targeted discovery seeking access to specific files or exchanges. Ergo – there is a real risk of not just evidentiary documents, but even “privileged advice” being shared with the DG if one is not careful or argue that such documents are excluded from the broader submission.

(ii)            Peaking risk: given the lack of any published standard-operating-procedure of the DG on their approach to accessing files that may contain “privileged advice” (unlike, the European Commission (EC)), and also factoring past run-ins with defendants on due-process issues, there is a possible risk of the DG “peaking” at privileged advice to gain insight. This would enable them to prepare targeted interrogatories; or once investigators have seen the clues they can mine non‑privileged data (i.e., emails, calendars, WhatsApp chats etc.) to reconstruct the same story without relying on the privileged document, thereby leveraging the external counsel’s work as an investigative map.​

(iii)          “Courts” to rescue? while the Supreme Court has clarified documents produced by an external counsel shall be vetted by a “Court” and not the investigative agency (in this case, DG) – the practicality of the directions are yet to be tested. So naturally, the following questions arise:

·       Forum: DG is a fact finding body, whereas the CCI is a quasi-judicial body. Appeals from the CCI lie to the National Company Law Appellate Tribunal (NCLAT) – which is also a tribunal, and an appeal against NCLAT’s decision lie to Supreme Court. Before conducting a dawn raid, the DG secures a search warrant from the Court of Chief Metropolitan Magistrate at New Delhi. In all of this, what would be the relevant “Court” that would look into the issue? Only time will tell.

·       Presence: While the Supreme Court states that the Court will examine the evidence in the presence of external counsel, their client and in case of digital evidence – a person of their choosing conversant with digital technology, it is silent on whether the investigators would be present during this examination. Presence of an investigator would vitiate the process and give rise to the “peaking risk”.

·       Scope of documents: In its reasoning for involving a Court in the process, the Supreme Court has noted that the reason for doing so is to ensure that “material for [his/her] other clients” in possession of such external counsel is not accessed by the investigators – this begs the question what about the “privileged advice” between the external counsel and the relevant client under investigation – and whether it is fair game?

B.    Raid: considering the clarification of the Supreme Court that in-house lawyers are not clothed by the protection of “privilege”, it is possible that during a dawn raid, the DG could cover the in-house lawyers within the scope of the search warrant. Effectively meaning that they could forensically scan and review the communications of in-house lawyers. The risks manifest in the following manner:

(i)             In-house lawyers, would need to be wary of how they “internalize and communicate the external counsels advice to the business stakeholders”. Since there is no privilege attached to their advice, any conclusions they draw / instructions they provide to internal stakeholders could be viewed as “evidence”.

(ii)            The “peaking risk” flagged above also exists if the DG were to review communications between in-house lawyers and their external counterparts. However, without the possibility of a Court moderated review (unlike the treatment meted out to external counsels), the risk stands exacerbated for in-house lawyers.

(iii)          While the company under investigation may be on the hook for “a type of alleged violation”, however, a broader review of in-house counsel’s communication could possibly throw open other statutory violations / defaults by the company in question. The question is whether the investigator – can either refer the issues to other regulators (if such violations / defaults are outside its mandate) and/or expand the scope of its investigation or start new investigation for violations that it could investigate?

Position in Europe and the USA

Under EU competition law, legal professional privilege before the EC covers confidential communications with independent external EU qualified counsel for the client’s rights of defence. However, it does not extend to in house lawyers, but external counsel communications are ring fenced in inspections.3 During EC’s dawn raids, documents identified as privileged are not supposed to be read, copied, or used by the inspectors, and disputed materials are handled via sealed envelopes etc. Thus, the EU law emphasizes on preventing inspection teams from seeing privileged content in any manner.

In the United States, the attorney–client privilege protects communications of both, in house and external counsel alike, while the separate “work product doctrine” shields materials prepared in anticipation of litigation such as counsel’s notes and strategies etc. The US agencies and courts use privilege screens to ensure investigators do not see privileged files or work product documents. In fact, use of leads derived from privileged content can warrant a challenge before courts for violation of privilege or work product protection.

The way forward

Since the practical implication of the Supreme Court’s decision are yet to be fully scoped, it is possible for us to witness probes that issue data requests to the external counsel or raids that include in-house lawyers within their scope being challenged before the writ courts for due-process concerns. However, these litigations will take time before the courts could pass meaningful directives that address practical concerns. Even then one should be wary that the Supreme Court in certain past cases has set aside various judgments of High Courts in India for “judicial overreach”, and noted that undue judicial intervention into mandate of investigative agencies is not warranted, except for cases where there is palpable due process concerns. So, it would be interesting to see even how the courts approach this issue and finally, how the Supreme Court reacts.4 Meanwhile, a word for the wise would be:

A.    In-house Lawyers would need to be wary of how they receive and store “privileged advice”. Ergo, if the advice is compartmentalized in their systems, then one could perhaps “protest” giving access to such communication / advice to the DG. Further, any derivative advice provided to other internal stakeholders (i.e., business teams / management) needs to be measured, as they lack privilege. Considering the sensitivities surrounding “written advice”, oral briefings could be adopted for sensitive discussions.

B.    External Counsels structuring antitrust reviews should anticipate potential document production requests and can prepare compartmentalised reports. Ensure that the advice is meant for select audience i.e., limited circulation. Another pro-tip would be to avoid factual annexures which could be carved out from the “privileged advice”. For those willing to go the extra yard, one can also consider cross‑border structuring for the most sensitive advice by taking shield of the stronger US / EU privilege laws.

• 1        Suo Motu Writ Petition (Crl.) No. 2 of 2025 with Writ Petition (Civil) No. 632 of 2025 and Special Leave Petition (Criminal) No. 9334 of 2025.
• 2        See Section 36 of the Competition Act, 2002 (as amended).
• 3        The decisions of the European Court of Justice (ECJ) in AM&S (Case 155/79); and Akzo Nobel vs. Commission (Case C-550/07P) (Akzo). Also, see Competition Policy Brief No 1/2025 in re: evaluation of Regulation 1/2003 – regarding the principles set out by the ECJ in 2010 Akzo judgment
• 4      P. Chidambaram v. Directorate of Enforcement, 2019 (9) SCC 24; D Venkatasubramaniam & Ors. v. M.K. Mohan, (2009)10 SCC 488; Popular Muthiah v. State, (2006) 7 SCC 296.