Imagine that you are counsel in the United States to a foreign company based overseas that learns the government is conducting a criminal investigation into conduct that involves your client. You expect that your client soon will become embroiled in the investigation, and that parallel civil litigation will ensue. Your client tells you it has tens of thousands of e-mails and other relevant documents at its overseas headquarters. Your client wants to know what its potential exposure may be. To answer that question, you recognize you will need to assess whether your client’s documents are incriminating. What do you do?

Many attorneys might tell their client: “Send me the documents so I can review them.” Certainly, reviewing them in your office is quicker, less expensive, and far more convenient than flying a team of lawyers to your client’s overseas headquarters to review the documents there. But the prudent lawyer also should ask: “if I bring my client’s overseas documents to my office in the United States for review, will the Department of Justice be able to obtain otherwise undiscoverable material by issuing a grand jury subpoena to my law firm?” Recent judicial decisions suggest that the answer may well be yes, and that the prudent course therefore may be to take the next flight to review the documents at your client’s offices overseas.

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