Foreign In-House Counsel Communications

The global financial crisis that has gripped the world’s economy for several years has drawn a wide range of businesses headquartered outside of the United States into litigation and arbitration proceedings in the United States. These disputes have cast a spotlight on the fact that many foreign countries do not recognize an attorney-client privilege for in-house counsel communications. As a result, non-U.S.-based companies routinely find themselves battling with adversaries about whether their in-house counsel communications are discoverable. Further complicating matters, foreign companies also face the unsettling specter that prosecutors eventually may seek production of these communications.

This article uses U.S., French and European Union law to highlight the disparate treatment afforded in-house counsel communication, reviews the standards applied by U.S. courts in deciding which country’s law to apply on this critical issue, and identifies steps that foreign companies might take to reduce their exposure to compelled production of their in-house counsel communications.

United States and France