Privilege Issues When Translating for Multinational Litigation

Legal Translation of Privileged Documents

Legal translation services for multinational litigation and international pretrial discovery play a very important role today. It goes without saying that a lot of issues associated with privilege-type confidentiality rules specific to each foreign country are likely to arise in the international litigation cases. Imagine a case that involved (i) two parties suing each other in multiple countries, (ii) one of those parties also suing a related company in multiples countries, and (iii) the two original parties also prosecuting patents before patent boards in multiple countries. Next, try to consider how to protect the attorney-client privilege among all of those legal proceedings.

Finally, think about how you would even begin to translate all the relevant foreign language documents to make sure that the legal pleadings are readable before the various courts, administrative bodies, and law offices involved.

Does this sound like a daunting challenge? You bet. But there are some interesting privilege rules that may help the multinational litigation process. Moreover, there are ways in which to make sure that each and every legal document is readable in whatever country the document resides.

The Cell-Phone App Dispute Fought Around the World

Consider an example of two technology companies – one based in China and the other based in the U.S. – who enter into a dispute over the rights over a fun cell phone app that allows you to put filters over the photos you take. Both companies claim to have a patent to the app. The following legal proceedings are launched:

1. The Chinese company sues the U.S. company for patent infringement in four countries, China, Germany, France, and the U.S.
2. The U.S. company responds by counter-suing in those jurisdictions.
3. The U.S. company sues a third company also for related patent infringement in China, France, and Germany.
4. The U.S. company also prosecutes its patent in the German patent court.
5. Finally, the Federal Trade Commission in the U.S. and Chinese government trade agency (MOFCOM) both open investigations into the Chinese company for patent violations.

In such a scenario, you now have patent litigation attorneys in China, France, Germany, and the U.S.; patent prosecution attorneys in the U.S. and Germany; and litigation attorneys for the third company in China, Germany, and France.

Accordingly, a number of questions arise regarding the attorney-client privilege:

• Are the privilege protections in the U.S. matched by those in other countries?
• Is some type of privilege waiver possible?
• What are the privilege responsibilities of foreign in-house corporate attorneys?

The Various Privilege Rules Around the World

Privilege in the U.S.

As you know, attorney-client privilege in the U.S. has four elements. The privilege applies to (i) a communication; that is (ii) made in confidence; (iii) between or among privileged persons; and is (iv) for the purpose of obtaining legal advice.

Typically, there are a number of ways that the privilege can be waived in the U.S. If a client (not the attorney) voluntarily discloses a communication, then it is no longer privileged. Subject-matter waiver occurs when there is a voluntary disclosure of a communication, thereby allowing disclosure of any communications related to the same subject matter. Implied waiver occurs when the client or attorney acts in a way that is inconsistent with maintaining the confidential nature of the communications considered privileged.

• Privilege in Germany

Unlike in the U.S., a German court may compel a client to testify about the advice received from an attorney. Only the attorney can refuse to testify on confidential client-attorney communications. Also, unlike the U.S., there is no protection for confidential documents that are in the client’s custody. The notion of in-house attorneys having a full duty of confidentiality is uncertain.

• Privilege in France

In France, outside attorneys have a “duty of professional secrecy,” meaning that they are obligated to maintain absolute professional secrecy with regard to a client’s confidential information. There is no privilege for in-house counsel in France. Further, unlike the U.S.’s rule of open discovery, only limited discovery is allowed in civil cases in France.

• Privilege in China

Attorneys in China have a duty to keep client communications and documents confidential. However, an attorney may not refuse to testify or produce information if ordered by a court or governmental agency. Refusal could result in the attorney losing his or her license or going to jail. While not having a U.S.-style attorney-client privilege, China appears to be moving in that direction.

Looking at our case example above, you can now imagine the kinds of privilege challenges that arise, particularly because the privilege-type confidentiality rules are limited in France, Germany, and China. So, how do you keep your privileged company information protected?

How to Solve Attorney-Client Privilege Issues in Multinational Matters

One option to figure out privilege questions is to deal with them before disputes arise. In many multinational cases the parties will put together a “privilege protection plan” or “common interest agreement.” Those plans or agreements will identify potential risks to information exchanges with foreign legal counsels and patent attorneys and provide solutions to questions ahead of time to the extent possible.

Courts in multinational cases have also devised a “touch bases” approach. So, when a privilege issue arises, a court will first determine whether the privileged communication “touches base” with the United States, i.e., does the communication focus on U.S. proceedings, or involve U.S. clients or attorneys. If the communication does not touch bases with the U.S., then the court determines the country with the strongest interest in the communication, and apply that country’s law.

Legal Translations for All of the Above

One cannot lose sight of the fact that all of the issues discussed above – pleadings in multiple countries; privilege protection plans, and common interest agreements – all need to be read and understood in various countries. To effectuate the safeguards needed to protect important privileged matters, you need to make sure that you employ professional, reliable legal translators.

Accordingly, we invite you to call us at All Language Alliance, Inc. We are a top-notch legal translation service that can help execute the strategies you employ to protect privileged communications while delivering certified translation of privileged documents from Simplified Chinese, French, Swedish, Portuguese, Hebrew, Traditional Chinese, Arabic, German, Spanish, Russian, and other languages to English for cross-border litigation. Email us for more information today by filling out “Translate All Languages” form on the right side of the screen.

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