Facts
- Renfield Corporation brought a federal antitrust action against E. Remy Martin & Co., S.A. and related entities.
- During discovery, the Remy defendants withheld 119 documents, asserting attorney–client privilege.
- Many withheld communications involved Remy officials and French in-house legal advisers who were not members of a French bar.
- Some withheld documents were located in France, and the parties agreed discovery of those documents proceeded under the Hague Evidence Convention.
- Other withheld documents were located in the defendants’ New York office.
- Renfield moved under Federal Rule of Civil Procedure 37(a)(2) to compel production or, alternatively, requested in camera inspection to test the privilege claims.
Issues
- Whether communications between corporate officials and French in-house legal advisers are protected by the attorney–client privilege in U.S. discovery.
- For documents located in France and obtained via the Hague Evidence Convention, whether privilege is limited to the law of the state of origin/execution or may be asserted under either U.S. or French privilege law.
- What privilege law applies to documents located in the defendants’ New York office and whether it protects communications with French in-house legal advisers.
- Whether in camera review is warranted when the privilege claim is supported by affidavit and document descriptions.
Decision
- The court denied Renfield’s motion to compel production of the withheld documents.
- The court held that communications with the French in-house legal advisers were privileged because the advisers functioned as attorneys: they provided legal advice, the communications were intended to be confidential, and they were made for legal-advice purposes.
- For documents in France subject to the Hague Evidence Convention, the court allowed assertion of the attorney–client privilege recognized by either U.S. law or French law, rather than restricting privilege to the narrower rule.
- For documents located in the United States, U.S. privilege law applied and protected the communications with the French in-house legal advisers.
- The court denied in camera inspection because the defendants’ privilege showing was adequately supported and Renfield offered no concrete basis to doubt it.
Legal Principles
- Attorney–client privilege in federal discovery focuses on the function of the legal adviser and the purpose and confidentiality of the communication; formal bar membership in the adviser’s home jurisdiction is not dispositive.
- Under the Hague Evidence Convention, a party may assert applicable privileges recognized by either the forum’s law or the foreign state’s law for Convention-governed evidence gathering, rather than being confined to the least protective privilege rule.
- For documents located in the United States, forum privilege law applies under a significant-relationship analysis and can protect communications with foreign in-house legal advisers acting in a legal-advice capacity.
- In camera review is generally inappropriate absent a specific, supported reason to suspect an improper privilege designation; affidavit-supported privilege logs and descriptions can suffice.
Conclusion
The court refused to compel production of documents withheld as privileged, holding that communications with French in-house legal advisers were protected and that the Hague Evidence Convention permitted assertion of privileges available under either U.S. or French law; it also declined in camera inspection where the privilege claim was adequately supported and not credibly challenged.