Federal Courts Assess Privilege Protection for International Communications

March 13, 2019

American courts assessing privilege protection for international communications usually apply U.S. privilege law to communications that “touch base” with the U.S. But purely overseas communications present a more difficult analysis – which depends on the country’s privilege tradition and attitude toward in-house lawyers, among things. Before undertaking this subtle overseas communication analysis, courts first must determine if the overseas participant involved in the communication is authorized to practice law in that country.

In In re Abilify (Aripiprazole) Products Liability Litigation, Case No. 3:16-md-2734, 2019 U.S. Dist. LEXIS 3279 (N.D. Fla. Jan. 8, 2019), plaintiffs claimed that two Japanese defendant companies had improperly withheld as privileged communications to and from Japanese nonlawyers. The court noted that “there are three types of legal personnel in Japan: Bengoshi, who are licensed attorneys; non-Bengoshi, who are non-licensed law undergraduates; and Benrishi, who are patent lawyers.” Id. at *6. The court emphasized that “[t]his distinction is important because attorney-client privilege does not apply to communications with unlicensed counsel.” Id. But the court found the issue moot, because the defendants assured the court that none of these privilege claims were “based solely on non-licensed legal personnel.” Id. One day later, in Circuitronics, LLC v. Shenzhen Kinwong Electronic Co., the court rejected defendant’s privilege claim for communications with “in house counsel who were not licensed Chinese lawyers.” Case No. 17-22462-CIV-UNGARO/O’SULLIVAN, 2019 U.S. Dist. LEXIS 3971, at *3 (S.D. Fla. Jan. 9, 2019). The court explained that “[u]nder Chinese law, there is no attorney-client privilege and at least prior to the recent change in 2015, in-house counsel in China are not persons authorized to practice law.” Id. at *4.

Lawyers dealing with international communications must start their analysis with determining the legal status of the overseas participants.