There are various methods for taking evidence abroad in the context of a civil procedure. First, a party could request the holder of the information to hand it over voluntarily. Secondly, he can request the court where the main proceedings are pending to make use of an interstate instrument for the taking of evidence abroad, for instance the Hague Evidence Convention or the EU Evidence Regulation. Thirdly, a court can – on its own motion or at the request of a litigant – order that the evidence should be taken based on the procedural laws of the forum. Finally, the applicant can request a foreign court within whose district the (holder) of the evidence is found to assist in the taking of evidence.

In this research, I focus on the latter two methods in those instances where a party wants to inspect information that his opponent has shared with a foreign lawyer. In this case, various questions arise. May the court grant the disclosure order based on the procedural laws of its state? If so, how should the court determine the applicable law regarding possible legal privilege? Will this be the rules of the forum, or should the court apply a foreign state’s rules on legal privilege instead? And does it make a difference whether the applicant requests disclosure during the main proceedings, or considering civil proceedings that will take place abroad?

This research discusses to what extent the US federal, English, French, German and Dutch courts may grant a disclosure request in such instances, and how these courts will determine the applicable law on legal privilege.

After the introduction, I argue in Chapter 2 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 Chapter 3, I describe that in each of the examined legal systems the court in principle has the authority to grant such a disclosure order. The US federal and English courts have done so in various cases.