Global Legal Strategies: Cross-Border Privilege Issues · Why a Presentation on Cross-Border Privilege? > Client conducts internal analysis and audits of antitrust ... “Other cultures

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G R E E N B E R G T R A U R I G , L L P | A T T O R N E Y S A T L A W | W W W . G T L A W . C O M

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Global Legal Strategies:

Cross-Border Privilege Issues Sponsored by

Center for American and International Law

Boot Camp for Multi-National Counsel

June 15, 2015

Jordan W. Cowman, 214.665.3652; [email protected]

Global Workforce Strategies Greenberg Traurig, LLP | gtlaw.com

Regulatory Challenges Around the World and

Across the Board

> Regulatory environment worldwide exposes our clients to complex compliance, litigation and similar risks

> Compliance is a HUGE issue

> Government investigations – finance, marketing, labelling, privacy, data protection, tax, IP, etc.

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Global Workforce Strategies Greenberg Traurig, LLP | gtlaw.com 3

Cross-Border Litigation is Big, Getting Bigger

Large increase in cross-border litigation

China, Brazil, India top list

US companies not accustomed to legal systems outside USA

Disputes involving 25+ countries not uncommon

Biggest increase in commercial, contractual and IP

Corporate Counsel www.corpcounsel.com February 14, 2014


Competitors & Litigants

Investigators Regulators

Who Wants Your Client’s Secrets and

Privileged Information?

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http://www.corporatecounsel.com/

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Let’s Go to China!

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Welcome Home!!!

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U.S. Border

> “Border Search Exception” to 4th Amendment (e.g. U.S. v. Arnold and its progeny)

> What’s on your laptop, thumb drive and smart phone? – like a locked suitcase

> FCPA / UK Bribery Act information

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U.S. Border Customs Searches

> No Constitutional rights against unreasonable searches and seizures

> No requirement of any warrant to be judicially authorized; No requirement of probable cause

> “Virtual strip search” and now in public domain

> Recent case contrary (US v. Kim, DC Cir. 2015)

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http://images.google.com/imgres?imgurl=http://sweetclipart.com/multisite/sweetclipart/files/flash_drive.png&imgrefurl=http://sweetclipart.com/black-usb-flash-drive-575&usg=__pxXY33zFXAyKZg5Oqb9E2PfJ22g=&h=5314&w=4760&sz=544&hl=en&start=11&zoom=1&tbnid=HEzNW8VKCeMcvM:&tbnh=150&tbnw=134&ei=j6BLT9maAeLjsQLB-ZHrCA&prev=/search?q=thumb+drives+clip+art&hl=en&gbv=2&tbm=isch&itbs=1

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What’s an International Attorney to Do?

> Take nothing with you

> Go low-tech – a legal pad with cryptic notes

> Take empty, new tech equipment (NOT wiped clean existing hardware) in sensitive matters

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Spoken or Written Communication

> Pick up the telephone!

> Do you really need to write it down?

> Don’t write it if you don’t have to!

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Are you Rendering Business Advice or Legal Advice?

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“We request legal

advice on the

following….”

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“In response to

your request for

legal advice….” > Don’t mix law and business in the same writing

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Why a Presentation on Cross-Border Privilege?

> Client conducts internal analysis and audits of antitrust

(FCPA / UK Bribery Act) issues

> In-house counsel resident in 7 countries involved

> Highly sensitive communications in audits

> Penetrating (and convicting) self-critical analysis

> Privilege & data privacy strategies?

> ABA MODEL RULES OF PROFESSIONAL CONDUCT 1.6

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http://images.google.com/imgres?imgurl=http://www.wandlinglaw.com/userfiles/fck/image/abagreenlogo.jpg&imgrefurl=http://www.wandlinglaw.com/overview/associations&usg=__Zw-5cPQ0GodnmmkVBlaQeSYi4S0=&h=311&w=639&sz=31&hl=en&start=5&zoom=1&tbnid=ypPJNCDoQxFhXM:&tbnh=67&tbnw=137&ei=36NLT7CmI_HisQKkr93rCA&prev=/images?q=american+bar+association&hl=en&gbv=2&tbm=isch&itbs=1

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“Lawyers

are

Lawyers”

> Often no equivalent of bar membership in other jurisdictions

> In-house counsel oftentimes are not eligible for bar membership

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Lawyers in Sweden

> There is no monopoly of legal services in Sweden.

> Any person may practice law, offering services to the public … no need for a law license

> Any person may use the title “lawyer”

> In-house counsel may not be bar members

> Privilege attaches to communications between clients members of the bar

> Confirm admitted status of in-house counsel AND OUTSIDE COUNSEL where applicable

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Antitrust / Anti-Bribery Investigations

& Prosecutions Have Globalized

> Detection of “international cartels”

> 34 OECD countries, South Africa, Japan, UK, Chile, Mexico, Canada, Sweden, USA, etc.

> New cooperation between governments – 180-degree change

> “Follow the Sun” 18 hour simultaneous dawn raids

> Examples: financial services, air cargo

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Easy? Attorney-Client Privilege Across Borders

Works Here,

Works There Don’t be U.S.-centric when

operating internationally!

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“Other cultures are not failed attempts at being us.”

-Wade Davis

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WSJ 14 September 2010

> The ECJ affirms AG Kokott’s advisory opinion

> Rejects Akzo’s arguments that its employees’ communications with internal lawyers should be covered by LPP

> AFFIRMED!!

“Bad Day For In-House Lawyers Part Deux”

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EU competition authorities have dawn raided legal departments in the EU and requested documents employees in EU can access from servers in U.S.,

including U.S. legal departments.

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International Compliance Tool Kit Essentials

And more to come!

And updates!

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Documents

Global Legal Strategies: Cross-Border Privilege Issues · Why a Presentation on Cross-Border Privilege? > Client conducts internal analysis and audits of antitrust ... “Other cultures