In Wultz v. Bank of China Ltd., No. 11-cv-1266 (S.D.N.Y. Oct. 25, 2013), on reconsideration in part, the court addressed whether communications made entirely in China, including communications with in-house personnel in China who provided legal advice but were not members of the bar, were protected by the attorney-client privilege.  Plaintiffs sought discovery from defendant Bank of China (BOC) of documents located in China.  The threshold issue was what law should be applied.  Under the Second Circuit’s “touch base” approach, a court applies the law of the country that has the predominant or most direct and compelling interest in whether the communications should remain confidential, unless that foreign law is contrary to the public policy of the forum.  Here, Chinese law applied to communications that occurred entirely in China and did not relate to litigation or other matters in the United States.  Chinese law does not recognize the attorney-client privilege, and there is no bar to a court requiring disclosure of communications with counsel; therefore, the privilege does not apply to these communications.  The court distinguished the case from others in which the courts have applied principles of “comity,” resulting in applying privilege in those cases where, as a practical matter, the communications would not be discoverable in the foreign jurisdiction.  The court also held that communications with in-house personnel in China who provided legal advice, but who were not members of the bar and did not have any legal credentials, would not fall within the privilege if U.S. law rather than Chinese law were applied to those communications.  Under U.S. law, in order to fall within the privilege, a communication must be with a person whose authority derives from their position as a member of bar who has been engaged to provide legal advice.