Legal Privilege and Transnational Evidence-Taking

Certain confidential lawyer-client communications are privileged from disclosure. Considering that these rules can differ from state to state, this book examines various states' disclosure laws and legal privilege rules in a comparative manner. It proposes a new rule that courts should use for determining the applicable privilege law during transnational litigation.

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There are various methods for taking evidence abroad during litigation. This book examines two of these: obtaining legal documents from a foreign national adversarial party during the main proceedings ('cross-border disclosure'); and obtaining documents with the help of an auxiliary court, with the aim of introducing them as evidence during foreign civil proceedings ('evidence shopping'). It has a particular focus on the situation where a party wants to inspect information that their opponent has confidentially shared with a foreign (in-house) lawyer.In such instances, various questions arise. May the court grant the disclosure order based solely on the procedural law of its state? If so, how should the court determine the applicable law regarding possible legal privilege? Will this be in accordance with the rules of its own state, or should the court apply a foreign state's rules instead? Does it make a difference whether the applicant requests disclosure during the main proceedings, or in the context of civil proceedings that will take place abroad?This book analyses these questions in relation to the U.S. federal, English, French, German and Dutch legal systems. It concludes by proposing a new rule that courts should use for determining the applicable legal privilege law in such cases.