In-house lawyers for corporations with headquarters, divisions, facilities, or offices in the United States and a European Union country often exchange privileged information. For example, an in-house lawyer based at a corporation’s U.S. facility may provide a legal opinion based on U.S. law to her in-house counterpart in the corporation’s German facility for use in a global legal strategy . And while many lawyers assume these communications are perfectly privileged, that is not necessarily the case. Cross-border communications raise many privilege and conflict-of-privilege law questions that should trouble in-house counsel.
In his thoughtful article, The Privilege Stops at the Border Even if a Communication Keeps Going, 80 S.C. J. Int’l L. & Bus. 297 (2012), David S. Jones identifies the conflict-of-law and related issues that arise when U.S. based lawyers exchange ostensibly privileged communications with their E.U. colleagues. The article provides a timely review of the major E.U. decision in Akzo v. Nobel Chemicals Ltd. v. European Comm’n, which held that in-house attorneys have no attorney-client privilege (legal professional privilege) and that no privilege exists for attorneys who are not members of an E.U. member state bar. Mr. Jones discusses how a U.S. federal or state court should analyze the conflict-of-privilege law issues in determining whether to apply the restrictive E.U. law to U.S.-based communications.
The scope of evidentiary privileges in E.U. countries is a continually emerging issue for multi-national corporations. Mr. Jones’ article, which is available at this link, provides a thorough overview of the issues and identifies key points that lawyers and judges should consider when addressing these often first-impression issues. It is well worth the read. And for those wanting a conflict-of-privilege law analysis between federal and state and between states, check out my chapter, The Application of Conflict of Laws to Evidentiary Privileges, published in DRI’s Evidentiary Privileges for Corporate Counsel.
My thanks to the South Carolina Journal of International Law and Business and Scholar Commons for permission to link Mr. Jones’ article in this post.
The Federal Rules of Civil Procedure and many corresponding state civil procedure rules require parties withholding privileged documents to prepare a privilege log identifying the withheld documents and the asserted privilege. But many lawyers either ignore these requirements or construct privilege logs that fail their essential purpose. Many reasons exist for this privilege-log apathy: privilege logs require tedious diligence and cause lawyers to procrastinate in their preparation; lawyers don’t insist on privilege logs from their adversaries for fear their adversaries will respond in kind; and some lawyers decide that legal strategy calls for keeping privilege claims intentionally vague and provide a general privilege log with no specifics.
The days of privilege log apathy are coming to an end. Courts are increasingly exhibiting more scrutiny of privilege logs and imposing sanctions, including the significant sanction of waiver, for insufficient privilege log descriptions. The privilege-log rule, however, is intentionally vague and simply requires parties to “describe the nature” of the putatively privileged document in a manner that “will enable other parties to assess the
claim.” Fed. R. Civ. P. 26(b)(5)(A). But several courts, through common law decisions or via local rules, now impose strict requirements on the composition of privilege logs.
In my article, Ignoring Privilege Log Obligations May Prove Costly, published by the Inside Counsel magazine and website, I explore the necessity of privilege logs, the various rules and requirements that some courts now impose, and outline the adverse consequences for failing to comply with these requirements. I end the article with a list of practical tips that should aid lawyers in preventing privilege log mishaps and privilege waiver. You may access the article at this link. My thanks to Inside Counsel for publishing the article and allowing access through this post.
Lawyers representing multiple defendants in a single lawsuit regularly share information such as witness-interview notes, deposition summaries, client-interview notes, expert-interview notes, legal memoranda, and other confidential information relevant to all defendants. Defendants are not alone in this information-sharing–plaintiffs’ lawyers in multi-plaintiff cases often share documents in which they have a common interest. Several privilege-related questions arise when parties share confidential information. Does sharing confidential information waive any applicable evidentiary privilege or the work-product doctrine? Is a joint defense agreement necessary to preserve privilege assertions? What provisions should a joint defense agreement contain? Are there any disadvantages to entering a joint defense agreement?
In their excellent article, In Unity There is Strength: The Advantages (and Disadvantages) of Joint Defense Groups, 80 Def. Counsel J. 29 (Jan. 2013), published in IADC’s reputable Defense Counsel Journal, Chicago trial lawyers Brad Nahrstadt and Brandon Rogers explore all aspects of joint defense agreements, including the scope of the joint defense privilege. The article discusses the advantages and drawbacks of forming information-sharing groups and what pre-litigation events trigger a joint defense situation necessary to secure the privilege. The authors identify a very helpful list of 33 provisions that parties should consider including in their joint defense agreement and, importantly, discuss ethical conflict-of-interest issues that may arise.
The authors remind us that the joint defense privilege, also called the common interest privilege, is not actually an independent privilege, but rather a doctrine of non-waiver. The joint defense privilege precludes waiver of other evidentiary privileges that protect information shared with the defense group as well as communications among lawyers for parties within the group. You may access the article at this link, and I recommend it as a “must read” for lawyers drafting joint defense agreements and otherwise wanting to share privileged information without waiving the privilege.
My thanks to authors Brad Nahrstadt and Brandon Rogers and the International Association of Defense Counsel (IADC) for permission to link this article in this post.