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Challenges of Preserving Cross-Border Attorney-Client Privilege

Consider the following scenarios: Your multinational-corporation employer undertakes a comprehensive internal investigation in the wake of alleged violations of the Foreign Corrupt Practices Act. In-house lawyers in several countries are involved, and email messages, memoranda and other highly confidential information are exchanged between attorneys and company executives. Later, a foreign regulatory authority seeks these documents as evidence against the company in its anticorruption investigation.

Or your global company gets sued in a Texas court, and the plaintiff's lawyer, perhaps savvy in in-house attorney-client privilege abroad, seeks a memo on the subject of the litigation drafted by an in-house attorney based in France and circulated to in-house lawyers stateside and elsewhere.

In both instances, the communications are protected by the in-house attorney-client privilege, right? Frighteningly, maybe not.

The question of whether privilege attaches to communications with in-house counsel is not as clear-cut in some international jurisdictions as it is in the United States. And in an increasingly globalized practice of law—where disputes involving multiple countries on multiple continents are not uncommon, as are companies unaccustomed to operating in legal systems outside the United States—the "very serious issue is cause and pause for concern" for companies engaged in cross-border business, says Jordan Cowman, a shareholder in the Dallas office of Greenberg Traurig.

In-house attorney-client privilege is "complicated enough, but when you start doing business and legal work across borders, it becomes like 3-D chess on five continents," Cowman says. "The scary takeaway is that identical information can receive different privilege status in different jurisdictions. And in-house counsel especially need to pay attention to this because they are the ones who stand between those who want the information and the information."

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