June 29, 2015 Articles

Protecting the Attorney-Client Privilege in Foreign Investigations

Foreign companies are often deprived of the attorney-client privilege.

By Jane Shvets and Blair Albom

Privilege laws of foreign jurisdictions are often less protective than those in the United States; thus, foreign companies are often deprived of the attorney-client privilege.

As markets and businesses become progressively interconnected and shaped by the forces of globalization, foreign companies are increasingly the subject of both criminal investigations and civil lawsuits in the United States. Although this entitles them to many of the protections offered under U.S. law, foreign companies are often deprived of one of the most important protections available in the American legal system—the attorney-client privilege. In many instances, and much to the surprise of foreign corporate litigants, courts have found that privilege laws of foreign jurisdictions—often less protective than their U.S. counterpart—apply to the communications at issue, despite the U.S.-based nature of the litigations. Moreover, even in cases where U.S. privilege law is found to apply, foreign companies may be denied the protections of the privilege if they insufficiently adhered to U.S. requirements when conducting investigations abroad. This article reviews the legal standard used by many of the nation’s federal courts to determine whether U.S. privilege law applies to foreign communications and its implications for internal investigations conducted outside the United States. It then offers some suggestions as to how multinational companies and their legal counsel can take proactive steps to best protect the privilege when conducting investigations overseas.

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