Legal Privilege and Transnational Evidence-Taking
René Jansen (former PhD Candidate at Tilburg University) has accepted the invitation of the editors of the blog to present his book, titled ‘Legal Privilege and Transnational Evidence-Taking – A Comparative Study on Cross-Border Disclosure, Evidence-Shopping and Legal Privilege’, published by Intersentia. The study is available in open access here. For the (revised) commercial edition, see here.
Nowadays, lawyers also represent foreign clients. They can, for instance, do so by telephone or e-mail, or during a short visit abroad. Furthermore, a lawyer can choose to work in a foreign country for a longer period of time, for instance as a legal adviser or an in-house counsel. Finally, a lawyer – who has been already admitted to the bar of his home state – could obtain the required qualifications for representing his clients in a foreign court.
In this study, the following research question is centralised: “To what extent may courts order the disclosure of information that is privileged according to a foreign state’s rules on legal privilege, and should they apply a different conflict rule for determining the applicable privilege law when making this assessment?”.
This study touches upon a problem that has also been witnessed in case law. At the same time, literature nor case law clarifies how courts should respond in reaction to a litigant’s request for disclosing information that has been shared between an opponent and her foreign lawyer during civil proceedings. This may cause legal uncertainty. For example, may the court grant the request? If so, which state’s rules on legal privilege should it apply, that of the forum state or a foreign state? And does it make a difference whether the disclosure-request is made during commenced proceedings, or in light of a contemplated procedure?
In this study, I argue in the second chapter that the Hague Evidence Convention and the EU Evidence Regulation do not prevent a court from compelling a litigant to disclose a document in violation of a foreign state’s laws. In the third chapter, I describe how in each of the examined legal systems (Dutch, English, French, German and U.S. federal) the court in principle has the authority to grant such a disclosure order. In the fourth chapter, I discuss the extent to which the courts of the examined legal systems may grant a disclosure order in the context of a foreign civil procedure, whilst also addressing Article 35 of the Brussels I bis Regulation. In the fifth chapter the differences that exist between the rules on legal privilege of the examined legal systems are presented, whereas the sixth chapter explores the possibility of constructing a new conflict rule for the type of cases that this study examines.
The most important findings are the following. There are various methods for taking evidence during transnational civil proceedings. Litigants could make use of differences that exist between these methods for circumventing restrictions on disclosing information under foreign law. For instance, a litigant could initiate proceedings in a state which laws offers the lowest level of legal privilege protection. If a court in that state subsequently applies the forum state’s rules on legal privilege, information could be obtained that is protected against disclosure according to foreign law.
I therefore plead that courts should apply a newly-constructed conflict rule for determining the applicable law on legal privilege during transnational civil litigation, in case a litigant attempts to obtain information that has been shared between an opponent and the latter’s foreign lawyer. In principle, the conflict rule aligns with the state’s laws where the lawyer habitually works. The conflict rule also contains a number of alternative rules for certain situations, such as when the lawyer has operated within an international team of lawyers.