Do Attorney-Client Privileges Apply In Private Cross-Border Investigations?
• Overview. Practitioners involved in internal matters, should consider to what extent communications between counsel and a client are protected under the law. Generally, in jurisdictions where the privilege is recognized, communications between outside legal counsel who are members of the local bar and a client are protected communications. European law, however, has not historically viewed communications between a company’s employees and in-house counsel to be similarly protected on the theory that in-house counsel are not sufficiently independent from the company to provide unbiased and neutral advice. • In one significant case from the 1980s, John Deere’s general counsel sent a memorandum to company managers located in Europe opining that company policies possibly violated European law. The European Commission was able to require the disclosure of that document, and it was used in connection with establishing a violation of European Commission antitrust law. See e.g. Re Deere & Co.
