Second Circuit Applies the "Touch Base" Test

January 27, 2021

Most other countries do not permit the type of intrusive discovery U.S. companies face. But occasionally discovery in U.S. litigation seeks communications to or from the U.S., or even purely overseas communications -- requiring U.S. courts to assess which country's privilege protection applies.

In Mangouras v. Boggs, 980 F.3d 88, 92-93 (2d Cir. 2020), the captain of an oil tanker that sank off the coast of Spain in 2002 had successfully obtained an order from the Southern District of New York allowing "discovery in aid of foreign proceedings" from a Squire Patton Boggs lawyer -- who had represented Spain in a S.D.N.Y. action. The Second Circuit held that the lower court had not conducted the necessary choice of law analysis -- reversing and remanding the discovery issue. The Second Circuit explained that U.S. privilege law applies to foreign communications that "touch base" with the United States. Id. at 99. This "touch base" standard clearly applies to communications to or from the U.S. -- and can also apply to purely overseas communications that involve a U.S. matter.

Companies with operations overseas should train their overseas employees to memorialize a U.S. connection when appropriate.

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