Smart Phones and Privilege Issues at the Canadian Border

A lawyer and his smart phone—that inseparable couple— create unique privilege issues when they cross an international border.  Border agents may demand to search your phone, including emails protected by the attorney–client privilege.

Several articles over the last several months, including this one from the ABA and this one from The New York Times, discuss U.S. Customs and Border Protection (CPB) agents’ authority to search a lawyer’s phone when she crosses the border.  The CPB has a policy directive, available here, that governs the search of a lawyer’s phone when the lawyer raises the privilege issue.  And the New York City Bar Association issued an ethics opinion, available here, instructing lawyers how to handle  U.S. border agents’ inspection of lawyers’ smart phones.

But what about policies and laws when lawyers cross the Canadian border?  May the Canadian Border Services Agency demand to search your privilege-laden phone?  Are there strategies, technologies, and other practice tips for handling search demands? Will the CBSA care about Canada’s solicitor–client privilege?

I don’t have the answer, but fortunately Toronto lawyers Nader R. Hasan and Gerald Chan do.  In their article, Flying With Your Cell Phone? Here’s What You Need to Know, Hasan and Chan identify the issues and offer practical tips for protecting privileged information when crossing the Canadian border.  You may read the article here.

My thanks to Susan Gunter of the Dutton Brock firm for alerting me to the issue and the article.  Enjoy.

A Non-Political, Legal Analysis of Trump Jr.’s Privilege Claim 3

Donald Trump, Jr.’s attorney–client privilege assertion over discussions with President Trump—in the presence of lawyers—has generated significant commentary on television news shows, and in news articles and opinion columns.  Some claim the privilege assertion was “brazen” and “unequivocally” wrong, while others see merit in the privilege argument or take a wait-and-see approach.

This is political—not legal—theater.

Many have expressed an interest in my analysis. So, here it is—my objective, non-political, legal analysis of the Trump Jr.’s privilege claim based on what we know. Those seeking blind support of the privilege assertion or a conclusory, hyperbolic denouncement should look elsewhere. More…

VW Avoids Privilege Waiver in Dieselgate Internal Investigation—Here’s How 1

May you disclose a privileged document to a government-enforcement agency and, later, successfully claim that the privilege precludes disclosure to an adversary in a civil proceeding?  Generally, there is no common-law selective-waiver doctrine, but the SDNY, in In re: Ex Parte Application of financialright GmbH, 2017 WL 2879696 (SDNY June 23, 2017), found no privilege waiver when Volkswagen’s lawyers disclosed privileged information to the Justice Department under a Non-Disclosure Agreement.  You may read the opinion here.

Internal Investigation into Emissions Scandal

Volkswagen’s 2015 emissions scandal—where it inserted software to circumvent U.S. emissions tests—is well known.  VW retained Jones Day, which conducted an extensive factual investigation as part of its representation.  Jones Day analyzed millions of documents and interviewed hundreds of VW employees.

DOJ Deal More…