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PhD Defense Mr. R. Jansen - Legal Privilege and transnational evidence-taking

Published: 03rd December 2021 Last updated: 28th July 2022

A comparative study on taking of documents abroad during litigation, the possibilities to shop for evidence and the various rules on legal privilege.

Summary

There are various methods to take evidence abroad in the context of a civile procedure. First, a party could request the holder of the information to hand it over voluntarily. Secondly, he can request the court where the main proceedings are pending to make use of an interstate instrument for the taking of evidence abroad, for instance, the Hague Evidence Convention or the EU Evidence Regulation. Thirdly, a court can – on its own motion or at the request of a litigant – order that the evidence should be taken based on the procedural laws of the forum. Finally, the applicant can request a foreign court within whose district the (holder) of the evidence is found, to assist in the taking of evidence.

In this research, I focus on the latter two methods in those instances where a party wants to inspect information that his opponent has shared with a foreign lawyer. In this case, various questions arise. May the court grant the disclosure order based on the procedural law of its state? If so, howe should the court determine the applicable law regarding possible legal privilege? Will this be the rules of the forum, or should the court apply a foreign state’s rules on legal privilege instead? And does it make a difference whether the applicant requests for disclosure during the main proceedings, or considering civil proceedings that will take place abroad?

This research discusses to what extent the U.S. federal, English, French, German and Dutch courts may grant a disclosure request in such instances, and how there courts will determine the applicable law on legal privilege.

After the introduction, I argue in the second chapter that the Hague Evidence Convention and the EU Evidence Regulation do not prevent a court from compelling a litigant to disclose a document in violation of a foreign state’s laws. In the thirds chapter, I describe that in each of the examined legal systems the court in principle has the authority to grant such a disclosure order. The U.S. federal and English courts have done so in various cases. Furthermore, the French and Dutch courts have ordered a foreign litigant to disclose a document in violation of a foreign state’s laws, albeit on fewer occasions. Moreover, it does not seem likely that a German civil court will grant such an order, because it may in principle not order a litigant to prove facts for which he does not bear the burden of proof. Furthermore, I conclude that in most of the examined legal systems the court will apply the rules on legal privilege of the forum, as to the information that has been shared with a lawyer who has been admitted to a foreign state’s bar association. Nonetheless, various U.S. federal courts use an alternative conflict rule for determining the applicable law on legal privilege. Case law furthermore shows that also a number of English and Dutch courts have done so.

In the fourth chapter I discuss the extent to which the courts of the examined legal systems may grant a disclosure order in the context of a foreign civil procedure. In this way, a party should try to obtain information that is in the hands of an opponent, when this is not possible according to the procedural laws of the foreign court where the case is pending. I conclude that an applicant may be able to successfully ‘shop’ for evidence in that manner, by filling his request at a U.S. federal, Dutch or French court. The extent to which the U.S. federal court will grant the order, seems to depend on the way in which it uses its discretionary powers based on Title 28 U.S.C. Section 1782. The Dutch court may in my view grant the disclosure order on such occasions, provided that the addressee is domiciled in the Netherlands. Whether the French court will grant the order, partly depends on whether the applicant can show the urgency of his request.

The differences that exist between the rules on legal privilege of the examined legal systems, are presented in the fifth chapter of this research. I note that according to the U.S. federal and English rules the right to claim privilege belongs to the client, whereas under the Dutch, French and German rules it is the lawyer who controls this right. Nonetheless, at the same time a client can – apart from under the U.S. and English rules – also intentionally or inadvertently waive the right to legal privilege according to the German rules. Furthermore, I explain that differences exist as to whether also the facts that underlie the lawyer-client communications are privileged from disclosure.  The same holds, in relation to the information that the lawyer has shared with a third party before advising his client. Moreover, differences also exist as to whether the communications that have been shared with an in-house lawyer are privileged from disclosure.

In the sixth chapter, I first discuss why it should be possible for a court to apply a foreign state’s rule on legal privilege. After concluding that it is presumably difficult for a litigant to prevent that a foreign court demands it to disclose information, I propose to adopt a new conflict rule. In my opinion, courts should use this multilateral conflict rule during transnational civil proceedings for determining the applicable law on legal privilege, in those instances where the applicant wants to inspect information that his opponent has shared with a foreign lawyer. The conflict rule’s default rule focuses on the place where the lawyer habitually works. Its alternative rules, for instance, determine the applicable privilege law if the information has been shared by an international team of lawyers. Finally, the conflict rule also clarifies when the court must apply its own state’s privilege rules for public policy-reasons.

proefschrift jansen

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