Legal Privilege and Transnational Evidence-Taking Book contents
- Frontmatter
- Preface
- Contents
- List of Instruments
- List of Cases
- Chapter 1 Introduction
- Part I A Study On The Extent to Which Courts May Order The Disclosure of Information Privileged Under Foreign Law
- Part II A Study on Adopting A New, Uniform Conflict Rule as to The Applicable Law on Legal Privilege
- Bibliography
- Index
- About the Author
Chapter 5 - The Limits of Legal Privilege: A Comparative Overview
Published online by Cambridge University Press: 20 April 2023
- Frontmatter
- Preface
- Contents
- List of Instruments
- List of Cases
- Chapter 1 Introduction
- Part I A Study On The Extent to Which Courts May Order The Disclosure of Information Privileged Under Foreign Law
- Part II A Study on Adopting A New, Uniform Conflict Rule as to The Applicable Law on Legal Privilege
- Bibliography
- Index
- About the Author
Summary
INTRODUCTION
Today’s international legal practice raises diff erent kinds of questions. I have discussed one of these questions in Chapter 3 , relating to how the courts of the examined states determine the discoverability of information that a client has shared with his foreign lawyer. Considering that most states’ courts seem to apply the lex fori based conflict rules in those instances, difficulties may arise when the laws of the addressed court’s state and that of a foreign state differ. This is especially true when a lawyer has worked as in-house counsel – or cooperated with several in-house counsel as an external lawyer – for a company that is located abroad. In doing so, the lawyer could have for instance performed an internal investigation vis-à-vis this company, or provided advice on a company’s patent application. Problems that may subsequently occur whilst the court determines the applicable law on legal privilege do not necessarily have to relate to any lower level of protection that the laws of the addressed court’s state offer. This is for instance illustrated by the case of Astra Aktiebolag v. Andrx Pharm., Inc., which was brought before the US District Court for the Southern District of New York in 2002.
Astra Aktiebolag and others had filed several patent infringement suits at the US District Court for the Southern District of New York. They launched these proceedings after various pharmaceutical companies had requested permission to sell generic versions of an expensive medicine. The civil proceedings mainly related to the validity of five patents, and the alleged infringement thereof by the defendants (Andrx Pharmaceuticals and others). During the pre-trial discovery stage of the proceedings, the defendants wanted to obtain several documents from Astra Aktiebolag. The latter refused to disclose these documents, arguing that this information was privileged from disclosure under the German and Korean rules on legal privilege. Astra Aktiebolag noted in that regard that these documents contained communications that Astra’s Swedish staff members (including its in-house counsel) had shared with its external lawyers in Korea, Germany and the United States.
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- Legal Privilege and Transnational Evidence-TakingA Comparative Study on Cross-Border Disclosure, Evidence-Shopping and Legal Privilege, pp. 173 - 222Publisher: IntersentiaPrint publication year: 2022