On 6 June 2024, Sascha Grimm from our London office, Teresa Michaud from our Los Angeles office and Jonas Koponen from our Brussels office hosted a webinar on Cross-Border Considerations for Protecting Privileged Evidence.
The session explores how to deal with cross-jurisdictional privilege issues that arise, in particular, for organisations with multiple group companies around the world. Sascha, Teresa and Jonas walk through a hypothetical case study in which various unfolding events and the flow of internal communications across different jurisdictions trigger numerous privilege questions – at each point addressing how these different issues would be dealt with under UK, US and European privilege rules.
Key takeaways for companies facing privilege issues around the world include:
- Understand what law is likely to apply if a dispute were to arise, and track the flow of potential communications between different group companies.
- Do not assume that just because documents are in the possession of one entity that they would not need to be disclosed in proceedings against a different entity in another jurisdiction.
- Confirm the status of in-house counsel and that their communications would be treated as privileged in relevant jurisdictions.
- Utilise job titles that indicate legal roles versus business roles, and make sure employment contracts reflect the job role (e.g., that a general counsel is employed to give legal advice to all group companies).
- Carefully plan where privileged materials will be stored and who has access to them.
- Apply appropriate “Privileged and Confidential” labels to legal advice and communications.
- Strictly limit the dissemination of legal advice to a “need to know” group of client recipients, and consider waiver rules in applicable jurisdictions.
- Consider limited waiver of privilege and joint interest privilege where appropriate, and take intentional steps to ensure protection.
Contributors
Sascha Grimm