Legal Privilege and Transnational Evidence-Taking Book contents
- Frontmatter
- Preface
- Contents
- List of Instruments
- List of Cases
- Chapter 1 Introduction
- Part I A Study On The Extent to Which Courts May Order The Disclosure of Information Privileged Under Foreign Law
- Part II A Study on Adopting A New, Uniform Conflict Rule as to The Applicable Law on Legal Privilege
- Bibliography
- Index
- About the Author
Chapter 2 - The (Non-)Exclusiveness of the Evidence Convention and the EU Evidence Regulation
Published online by Cambridge University Press: 20 April 2023
- Frontmatter
- Preface
- Contents
- List of Instruments
- List of Cases
- Chapter 1 Introduction
- Part I A Study On The Extent to Which Courts May Order The Disclosure of Information Privileged Under Foreign Law
- Part II A Study on Adopting A New, Uniform Conflict Rule as to The Applicable Law on Legal Privilege
- Bibliography
- Index
- About the Author
Summary
Introduction
In the introduction I explained that a court can – inter alia – choose to obtain evidence from abroad via the method of interstate judicial assistance. In this chapter, I analyse whether there are also some situations in which the court must use this method according to the international instruments on the taking of evidence abroad. I will specifically focus on the situation in which the court orders a litigant to disclose a document that has been drawn up abroad by means of an injunction, whilst the litigant concerned claims that the information is privileged from disclosure according to a foreign state‘s rule on legal privilege. Such a course of events occurred – for instance – in a case between Royal Bank of Scotland (RBS) and its shareholders that was pending before the English High Court in late 2016:
In this case the shareholders – who acted as the plaintiffs – sought financial compensations from RBS, for the investment losses that they had suffered. During the proceedings, the shareholders wanted to inspect interview notes that were in the possession of RBS. The interviews that had taken place on US territory were performed by an US law firm, whilst the interviews that had taken place within the UK were performed by an English law firm and RBS’ non-lawyers ‘on the instructions and under the supervision’ of that US law firm. Accordingly, RBS argued that the resulting interview notes were privileged from production, either on the basis of the English rules on legal privilege or – if the court would conclude otherwise – on the basis of US federal privilege law. The High Court, however, reasoned that only the English privilege law could be applied in relation to the interview notes. It concluded that RBS had to disclose these notes, because this information was not privileged from disclosure according to the English rules on legal privilege.
In the following section, I first discuss the history of interstate judicial assistance in the taking of evidence abroad. In doing so, I also explain why states felt the need to adopt bilateral agreements on such evidence-taking during the nineteenth century.
- Type
- Chapter
- Information
- Legal Privilege and Transnational Evidence-TakingA Comparative Study on Cross-Border Disclosure, Evidence-Shopping and Legal Privilege, pp. 29 - 74Publisher: IntersentiaPrint publication year: 2022