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ARTICLE · 08 APRIL 2014

Applying Another Country's Privilege Law Can Sometimes Expand Privilege Protection

U.S. courts usually apply other countries' privilege laws to purely overseas communications that do not "touch base" with the United States.

United StatesLitigation, Mediation & Arbitration

As a matter of comity, U.S. courts usually apply other countries' privilege laws to purely overseas communications that do not "touch base" with the United States. Because most European countries (and the EU itself) do not extend privilege protection to in-house lawyers' communications, in many situations applying foreign privilege law decreases possible privilege protection for U.S. corporations.

However, in some contexts, foreign law offers a greater chance of privilege protection than U.S. law normally provides. In Cadence Pharmaceuticals, Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661 (S.D. Cal. Feb. 3, 2014), the court assessed communications in Germany involving a patent agent, which dealt with a European patent application. The court concluded that the communications did not "touch base" with the U.S., and therefore applied German law. Id. at *8-9. The court extended privilege protection to the communications –

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