Most other countries do not permit the type of intrusive
discovery U.S. companies face. But occasionally discovery in U.S.
litigation seeks communications to or from the U.S., or even purely
overseas communications -- requiring U.S. courts to assess which
country's privilege protection applies.
In Mangouras v. Boggs, 980 F.3d 88, 92-93 (2d Cir.
2020), the captain of an oil tanker that sank off the coast of
Spain in 2002 had successfully obtained an order from the Southern
District of New York allowing "discovery in aid of foreign
proceedings" from a Squire Patton Boggs lawyer -- who had
represented Spain in a S.D.N.Y. action. The Second Circuit held
that the lower court had not conducted the necessary choice of law
analysis -- reversing and remanding the discovery issue. The Second
Circuit explained that U.S. privilege law applies to foreign
communications that "touch base" with the United States.
Id. at 99. This "touch base" standard clearly
applies to
