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.

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