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Presented By:
PRIVILEGE IN CROSS-BORDER
LITIGATION
Sharon Morgan, Partner, Fox Rothschild LLPMaya Eckstein, Partner, Hunton & Williams LLPJennifer Deitloff, Senior Counsel, Con Agra Foods Inc.
October 29, 2015
Presented By:
Types of Privilege• Attorney Client Privilege• Work Product Doctrine• Self‐Critical Analysis Privilege• Common Interest/Joint Defense• Cultural – Professional confidentiality
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Presented By:
Attorney Client Privilege• American Legal Concept• Designed to encourage full and frank communication between
attorneys and clients and promote public interests in observance of law and administration of justice.
• Attorney can’t be compelled to testify• Exceptions:
– Comm. made in presence of non atty/non client– Comm. made in furtherance of crime or tort– Client waives the privilege
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Presented By:
Work Product Doctrine• Protects materials prepared in anticipation of litigation
• Designed to protect mental impressions of preparer of document
• Can be overcome by showing of substantial needs of the materials, and undue hardship in obtaining the information by other means
• Core/opinion work product not discoverable
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Presented By:
Self-Critical Analysis Privilege
• Protects information prepared in the course of internal review or audit undertaken to ensure compliance with statutory or reg. requirement
• Public interest must be strong/gov’t mandate• Applied unevenly
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Presented By:
Common Interest/Joint Defense
• Extension of attorney client privilege• Protects confidentiality of communications passing from one party to another party where a joint defense/strategy has been decided upon
• Extends outside context of litigation, hence “common interest” rule
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Presented By:
Cultural – Professional Confidentiality
• Indirect communication• Secrecy• Trust
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Presented By:
The Hypothetical• Employee Hotline Complaint
– Overseas automobile manufacturing facility of publicly traded DE Corporation
– Plant Manager – Bribe in exchange for inspection pass;
– Corporate Officer – Employee complains company knows blatant infringement of competitor’s patents
– Employee is fired
• Internal Investigation
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Presented By:
Exposure• Failure to Inspect – Personal injury suits • Employee Suit – Wrongful termination• Shareholder Suit and Patent Infringement Suit• FCPA and/or local anti‐corruption law issue
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Presented By:
Initial Questions• Where is the Plant?• Where are the lawsuits being filed?• In‐house or outside counsel?
– Licensure?– Actively practicing?– Scope of attorneys’ duties within organization?– Multiple attorneys?
• Documentation of investigation• Nature and scope of investigation• Where and how did the communications take place
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Presented By:
Internal Investigation• Identify scope of investigation• Preserve the privilege• Consider Upjohn warnings• Preserve documents• Consider hiring local counsel• Conduct employee interviews
– Advantages and disadvantages– Alleged wrongdoer – retain separate counsel?
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Presented By:
Internal Investigation: Additional Considerations for Cross-Border
Investigations• Language barriers• Cultural pitfalls• Data privacy laws• Labor laws• Preserving Attorney‐Client Privilege
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Presented By:
Litigation• Document hold – Who writes it and will they understand it?
• Discovery ‐What’s fair game?
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Presented By:
Litigation: Choice of Law Issues?
• US courts typically apply traditional choice of law rules to privilege issues.
• “Touching Base” or “contacts” analysis:– If communication has no contact or only incidental connection to US, then other country’s law.
– Otherwise, US law (federal common law in federal court w/federal question; applicable state law in other situations).
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Presented By:
Litigation: Role of In-House? • Educate outside counsel on relevant background and share company’s risk tolerance
• Educate business partners regarding foreign processes and highlight differences from U.S. model
• Develop thorough understanding of nuances of risk and set litigation strategy with assistance from outside counsel
• Regularly communicate with business partners about status and set expectations
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Presented By:
EU• No attorney‐client privilege for in‐house counsel.• Attorney‐client privilege applies only if communication made:– for the purpose of the client’s defense, and – with an “independent lawyer.”
• “Independent” = not bound to the client by employment.– Rationale: in‐house lawyers lack independence and are subject to instructions and interests of their company.
• Country‐specific rules may apply when not dealing with cross‐border issues like EU competition law probes.
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Presented By:
UK• Attorney‐client privilege recognized if:
– exchanged between lawyer and client;– has been confidential since its creation; and– relates to either:
• existing, pending or reasonably contemplated litigation; or• legal advice given in a contentious or non‐contentious context.
• Client team of corporate entity must be established from outset; cannot extend to entire corporate entity or department.
• Applies to outside and in‐house lawyers if qualified to practice under the Solicitors Regulation Authority or Bar Council rules.
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Presented By:
Russia• No attorney‐client privilege, but “advocate secrecy” doctrine applies to narrowly defined groups of “advocates”.– Lawyers who obtain status of advocate requires registration in register of advocates kept by Russian Ministry of Justice.
– Most Russian lawyers are not advocates.– Does not extend to in‐house counsel.
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Presented By:
India• Professional communications between client and lawyer made with
view to obtaining legal advice are privileged.• Communication must be
– for purpose of seeking legal advice; or– based on or relating to litigation or anticipated litigation or regulatory
action.• In‐house counsel, being employed by company, not recognized as
an “attorney” under Indian law.– Professional communications between in‐house counsel and officers,
directors and employees are not protected. – The communications must be made or received by an “attorney.” – In practice, in‐house counsel employment contract usually contains
confidentiality clause protecting information disclosed to counsel during course of employment.
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Presented By:
Brazil• Available to those licensed to practice in Brazil• No distinction between in house and outside counsel
• Applies to information provided to lawyer in his/her capacity as legal counsel
• Waiver of privilege in the event of finding of criminal activity
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Presented By:
Germany• Professional privilege/confidentiality for outside attorney client communications– No discovery or disclosure proceeding, either pre trial or during trial
• In House Counsel– Must be admitted to bar– Limited to information obtain in course of providing legal advise
– Must maintain separate office
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Presented By:
Post Mortem• ‐Evaluate internal training or leadership education opportunities
• ‐Consider resources in house and outside and methods of communication
• ‐Investigation processes – any changes needed?
• ‐Do you know where your data is? Consider whether your internal IT structures need to be reviewed
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Presented By:
Sharon Morgan, PartnerFox Rothschild LLP(302) 622‐4246
Maya Eckstein, PartnerHunton & Williams LLP
(804) 788‐[email protected]
Jennifer Deitloff, Senior CounselCon Agra Foods Inc.(402) 240‐4562
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