In Anwar v. Fairfield Greenwich Ltd., No. 09-0118 (S.D.N.Y. Nov. 8, 2013), the district court rejected objections to the magistrate judge’s order which had held that the attorney-client privilege did not protect communications between defendants and their Dutch in-house attorney, who was not a member of the bar in the Netherlands. The court found that the “touch base” approach, which applies the law of the country with which the communications “touch base,” is the proper method for determining choice of law with respect to privilege. Here, either the law of the Netherlands or the United States could be applied but neither law protected the communications. It was undisputed that the Dutch in-house counsel was not a member of the bar in the Netherlands. Under U.S. law, in order to fall within the privilege, the attorney must be a member of a bar, or the client must have made a reasonable mistake in believing that the attorney was a member of the bar. Here, the attorney was not, and never had been, licensed in any jurisdiction and had neither held himself out to be a licensed attorney nor performed acts suggesting to his employer that he was admitted to the Netherlands bar. Thus, defendants could not credibly claim a reasonable mistake as to the attorney’s status. Defendant conceded that the communications would not be privileged under Dutch law. However, defendant argued that the court should apply principles of “comity” and bar discovery because, as a practical matter, the communications would not be discoverable in the Netherlands which, according to defendants, had no active document production culture which would allow discovery of the communications in a Dutch proceeding. The court disagreed with the premise of this argument, finding that Dutch law allows wide-ranging document disclosure and defendants’ own expert had previously stated in a published article that document production is an accepted part of litigation in the Netherlands. The court held that the magistrate judge did not clearly err by concluding that, under either Dutch or U.S. law, the communications were discoverable in a U.S. proceeding.
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