A corporate entity operating in multiple countries and regions is constantly confronted by conflicting rules in various jurisdictions. Particularly with respect to privilege and attorney work-product protections, what may be beyond the scope of discovery or even privileged in one country can be discoverable in another. While U.S. lawyers conducting internal investigations may automatically assume that certain communications are protected, they may be quite surprised to find out that those same communications are governed by sets of rules stripping them of any protections.
This fact recently was highlighted in two Southern District of New York cases that found that communications with foreign counsel for the same client may have to be produced in U.S. litigation. See Wultz v. Bank of China, 979 F.Supp.2d 479, 485 (SDNY 2013); Veleron Holding v. BNP Paribas, 12-CV-5966 CM RLE, 2014 WL 4184806 (SDNY Aug. 22, 2014) (U.S. Mag. Ct.). In order to assess what documents may have to be produced and how to protect not-yet-created investigation materials, it is important to understand the choice of law test U.S. courts apply in deciding which jurisdiction’s privilege law applies. After examining the applicable law, this article provides some guidance when approaching such investigations.
The Touch Base Test
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