About one-half of European countries do not extend privilege protection to communications to and from in-house lawyers, because they do not view in-house lawyers as sufficiently independent. However, most lawyers know about this issue only by reading columns and worldwide privilege surveys prepared by various organizations.
In In re Rivastigmine Patent Litigation, 237 F.R.D. 69 (S.D.N.Y. 2006), Magistrate Judge James Francis dealt with privilege issues involved in pharmaceutical company Novartis’s lawsuits against various alleged patent infringers. The defendants sought discovery of Novartis’s documents. After explaining that U.S. courts apply the law of the jurisdiction “where the patent application is pending,” Judge Francis engaged in an exhaustive analysis of 36 countries’ privilege laws ‑‑ from Botswana to Slovakia. Id. at 74. He refused to protect communications between Swiss in-house lawyers and their clients in Switzerland. Acknowledging that U.S. courts frequently examine differences in legal systems when determining how to apply the privilege, Judge Francis explained that “the absence of privilege results not from the lack of comparability of the Swiss and U.S. legal systems, but from the fact that Swiss law specifically excludes the documents at issue from the privilege it recognizes.” Id. at 78.
As the issue of European in-house lawyer privilege moves from the academic to the practical, lawyers must pay attention.