EU Litigation Update - July 2024

Legal Professional Privilege in the US and EU: Lacunae and the Case for Convergence.

Introduction

It is common ground on both sides of the Atlantic that communications covered by Legal Professional Privilege (LLP) are, in principle, excluded from disclosure, cannot be seized, and cannot be used as evidence in regulatory or Court proceedings. It is also common ground that the application and scope of LPP varies significantly between countries and legal systems which, in turn, results in inconsistencies and different treatment of a single piece of evidence depending on where it is physically located or electronically stored, who has seen it, and the agency/litigant attempting to seize it. In the context of European competition law enforcement, the question arises whether the European Commission can require corporations under investigation to disclose material that is protected by LPP in a non-EU jurisdiction. The issue is of obvious importance to international