Attorney-Client Privilege - Foreign In-House Counsel’s Communications

Attorney-client privilege.

Confidentiality.

Internal communications between in-house counsel and their companies’ employees.

Foreign in-house counsel’s communications with a U.S.-licensed general counsel.

Republication

FTC

U.S. Privilege Following Akzo Nobel v. European Commission

By Alden F. Abbott, General Counsel, and Ashley Gum, Assistant General Counsel
October 3, 2018

The U.S. antitrust agencies and the E.U. collaborated on best practices for merger reviews and agreed upon the following advice to industry participants:

As the rules governing legal professional privilege are different in the E.U. and the U.S., in particular with regard to in-house lawyers, the agencies will accept a stipulation in parties’ waivers given to DG Competition that excludes from the scope of the waiver evidence that is properly identified by the parties as and qualifies for the in-house counsel privilege under U.S. law.

October 2011 U.S.-E.U. Merger Working Group Best Practices on Cooperation in Merger Investigations, p. 6 n.10. Similarly, the Updated Model Waiver of Confidentiality for International Civil Matters, introduced in 2013 by the FTC in conjunction with the Department of Justice’s Antitrust Division, and updated in 2015, contains the following recommended provision:

It is … understood that FTC/DOJ will not seek from [non-U.S. competition authority] information that is protected by U.S. legal privilege. To the extent possible, [entity] will clearly identify to [non-U.S. competition authority] information that would be subject to U.S. legal privilege. If the FTC/DOJ receives information from [non-U.S. competition authority] that [entity] claims as privileged in the U.S., it is understood that the FTC/DOJ will treat such information as inadvertently produced privileged information.

This advice still stands. Of course, corporate counsel should account for the fact that inconsistent privilege rules may apply where both the FTC and the European Commission are conducting parallel investigations. But this alone should not suggest that the FTC intends to disturb longstanding U.S. application of the attorney-client privilege, even where a company might produce arguably privileged material in a DG Comp investigation. In fact, the FTC does not use international process to seek even privileged materials produced voluntarily to EU authorities, such as those included in productions by third-party complainants. In short: whatever Akzo’s effect on privilege and communication in global businesses, it’s business as usual at the FTC.