Another Court Applies European Law in Denying Privilege Protection for an In-House Lawyer’s Communications

June 15, 2011

American courts generally apply United States privilege law (including protection for in-house lawyers) to communications that “touch base” with the United States. For communications that do not “touch base” with the United States, most courts apply foreign law as a matter of comity.

In AstraZeneca LP v. Breath Ltd., Civ. No. 08-1512 (RMB/AMD), 2011 U.S. Dist. LEXIS 42405 (D.N.J. Mar. 31, 2011), the court dealt with draft patent applications prepared in Sweden, which does not recognize privilege protection for in-house lawyers. AstraZeneca argued that the draft applications and related communications “touched base” with the United States. The court disagreed, noting that the communications “do not relate to the prosecution of the United States patent applications or involve United States proceedings, nor do the documents involve communications with United States attorneys.” Id. at *16-17. The court found that AstraZeneca’s stated intent to file a United States patent application was only an “‘incidental connection'” to the United States, and thus “insufficient to support AstraZeneca’s contention that these communications touch[ed] base with the United States and thus U.S. privilege law applies over Swedish law.” Id. at *20 (citation omitted). The court therefore applied Swedish law – and denied privilege protection for communications to and from a Swedish in-house lawyer.

United States companies with overseas operations should use decisions like this to train their foreign employees in the standards United States courts will ultimately use in determining whether United States privilege law applies to foreign documents.