There are legal and practical considerations in protecting privilege
China is `greatest outlier’ in recognizing privilege shield
Multinational companies, when trying to protect legal communications, must keep in mind that the attorney-client privilege isn’t recognized in all countries.
China is the “greatest outlier,” Deere & Co. Senior Counsel Kristin Esche told Bloomberg Law. There, “the concepts of confidentiality and rule of law are really in essence developing as we watch.”
Although the European Union has privilege rules, individual member countries differ in their laws, Esche said. Some of the countries “have what is considered a legal professional privilege, but it does not protect against the production of documents in the same way that the attorney-client privilege does in the U.S.”
In the U.S., the privilege keeps communications between lawyers and their clients confidential.
Deere & Co., an equipment manufacturer based in Moline, Ill., has offices and facilities in more than 30 countries. Esche spoke to Bloomberg Law Oct. 16 on the sidelines of the Association of Corporate Counsel’s annual meeting in Washington.
In addition to the legal considerations, companies also must take practical steps to protect their privileged materials, Esche said. “Diligence and vigilance” are the key words, she said. “And that really comes down to training employees.”
Employees must be trained to distinguish between business materials and legal advice, Esche said. In-house counsel also must ensure that legal advice is clearly marked as such, and be mindful of where that advice is sent.
Esche suggested that attorneys monitor the litigation stemming from German authorities’ raid of Jones Day’s Munich offices in March.
The U.S. law firm was hired by Volkswagen AG in 2015 to conduct an investigation into its diesel-emissions scandal. German authorities probing the scandal raided Jones Day and seized documents. VW and the law firm subsequently filed complaints against the prosecutors.
In July, Germany’s federal constitutional court barred the Munich prosecutors from reviewing the seized files. The documents are now stored at Munich district court, according to a Bloomberg News report.
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