Global clients and their New York law firms routinely weigh the risks of bringing client documents into the United States, not only in connection with the expansive document discovery obligations in U.S. civil litigation, but also in response to the expanding mandates of U.S. regulatory agencies and their broad (and often untested) views on extraterritorial jurisdiction. In recent years the focus has extended beyond the U.S. Department of Justice (DOJ) and Securities and Exchange Commission (SEC) to include the Manhattan District Attorney’s Office’s emphasis on prosecuting economic crimes, as well as the enforcement priorities of the New York Attorney General’s Office.
A careful review of a foreign client’s documents by its law firm is a key component to any matter, whether civil, criminal, or in the context of an internal investigation. The decisions taken at the start of an engagement as to where that review is conducted can have critical ramifications as the matter progresses, particularly if the law firm is later subpoenaed for those client documents. This article examines relevant considerations by federal and New York state courts that have been faced with the issue of compelling production of a foreign client’s files that are in the custody of a New York law firm.1
Second Circuit Approach
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