United States: Choice Of Law Principles In Cross-Border Privilege Disputes: Whose Law Applies?

I. The Attorney-Client Privilege and Work Product Doctrine in the United States and Abroad

The attorney-client privilege and work product doctrine are important and well-known concepts to nearly every lawyer in the United States. Generally, the attorney-client privilege shields from disclosure confidential communications between attorneys and clients for the purpose of seeking or rendering legal advice, while the work product doctrine guards documents or other tangible things prepared in anticipation of litigation by or for a party.1The United States affords litigants and lawyers relatively broad protections under these doctrines through the Federal Rules of Evidence and Civil Procedure or, as appropriate, analogous provisions under state law.

While many foreign legal systems recognize some form of confidentiality between attorneys and clients, the laws of many countries do not recognize the attorney-client privilege and work product doctrine to the breadth we do in the United States and some do not recognize it nearly at all. This is important because, while many lawyers are aware that the laws of other countries do not provide for the same broad discovery provisions as the Federal Rules of Evidence and Civil Procedure, fewer focus on the fact that our expectations as to the privacy of oral and written communications will not necessarily hold for cross-border matters. Lawyers should not assume that communications addressing sensitive matters or strategy will automatically be found privileged.

Therefore, in today's increasingly connected and complex world, the following important question arises: whose privilege law will apply in cross-border matters in U.S. courts

II. Foreign Privilege Law in U.S. Courts

When resolving cross-border privilege issues, U.S. courts typically employ principles of comity, or the "touching base" approach, to determine whether to apply U.S. or foreign law. This examination focuses on: (i) the jurisdiction with the "predominant interest in whether [the] communications should remain confidential," and (ii) "the place where the allegedly privileged relationship was entered into."2Further informing the analysis are § 139 of the Restatement (Second) of Conflict of Laws and § 442 of the Restatement (Third) of Foreign Relations Law, which maintain that courts should consider and apply certain factors to identify the jurisdiction with the most significant relationship with the communication, including adopting the law of the jurisdiction favoring disclosure unless "special reason" or "strong public policy" dictate otherwise. As discussed below, however, while this reasoning may provide useful guidance, it is far from outcome determinative.

Astra Aktiebolag v. Andrx Pharmaceuticals, Inc.demonstrates the difficulty of, and differences in, applying a foreign country's privilege standards to U.S. discovery rules. In Astra, a dispute involving allegations of patent infringement, the court found that Korean law governed privilege claims surrounding a group of documents which involved communications with Astra's outside counsel in Korea, and that Korea, a civil law country, did not recognize an attorney-client privilege or work product doctrine.3However, the court also determined that under Korean law an adverse party could not compel disclosure of any of the disputed documents. The Astra Court therefore concluded that the absence of Korean attorney-client privilege and work product provisions did not require the court to order the production of all of the contested documents, noting that "to apply Korean privilege law, or the lack thereof, in a vacuum — without taking account of the very limited discovery provided in Korean civil cases — would offend the very principles of comity that choice-of-law rules were intended to protect."4Thus, notwithstanding the court's finding that the communications did not "touch base" with the United States, the court ultimately held the documents privileged choosing to apply U.S. privilege law to the Korean documents as "application of foreign privilege law in this case would require disclosure of many documents (1) that are protected from disclosure under American law and (2) that would not be discoverable under Korean law."5

III. Practical Considerations for U.S. Lawyers and Clients

As evinced by Astra, U.S. courts may engage in complex levels of analysis when interpreting foreign privilege law. While the end result of Astra followed what would have been the construct under U.S. law, that resolution will not necessarily prove out under all circumstances. Thus, when rendering or seeking legal advice across borders, lawyers and their clients should remain mindful that traditional notions of U.S. privilege and work product protections may not apply to their communications and information. Attorneys and clients should take every step necessary to best understand the potential confines of the attorney-client privilege and word product doctrine when providing legal advice or doing business abroad. Both parties can limit the possibility of mandatory disclosure by making a concerted effort to: (i) communicate legal advice orally instead of by writing (e.g., e-mail)6; (ii) segregate and mark appropriately confidential communications and documents; (iii) select favorable choice of law and forum provisions in contracts to minimize the risk of litigation in unfavorable jurisdictions; and (iv) restrict, to the extent reasonably practicable, confidential communications or materials to necessary parties.


1 See In re Cnty. of Erie, 473 F.3d 413, 418-19 (2d Cir. 2007), citing United States v. Const. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996); In re Omeprazole Patent Litig., 2005 WL 818821, at *8 (S.D.N.Y. Feb. 18, 2005), citing In re Grand Jury Subpoenas Dated Dec. 18, 1981 & Jan. 4, 1982, 561 F. Supp. 1247, 1257 (E.D.N.Y. 1982).

2 Gucci America, Inc. v. Guess?, 271 F.R.D. 58, 65 (S.D.N.Y. 2010).

3 Id. at 99-101.

4 Id. at 102.

5 Id.

6 While still discoverable if not privileged (e.g., by interrogatories or depositions), oral communications are more difficult to capture than written communications.

Choice of Law Principles in Cross-Border Privilege Disputes: Whose Law Applies?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions