In an increasingly global economy, American courts frequently must decide whether documents created by foreign non-lawyers should receive privilege protection. Foreign patent agents licensed in their home countries are the frequent subject of this analysis.
In Organon, Inc. v. Mylan Pharmaceuticals, Inc., 303 F. Supp. 2d 546, 548 (D.N.J. 2004), the court relied on principles of comity in finding that documents prepared by licensed patent agents in Holland deserve privilege protection in an American court – after extensively analyzing Dutch license law, the “exemption from testifying” that such patent agents receive under Dutch procedure, and testimony by Dutch law professors.
Lawyers whose clients operate overseas should familiarize themselves with the privileges that may or may not apply to overseas employees whose jobs are analogous to American lawyers’ jobs.