In Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 118 (S.D.N.Y. July 8, 2013), the court granted plaintiffs’ motion to compel over defendants’ privilege objections. During a deposition, defendants instructed a senior Dutch in-house lawyer, Boonstra, not to answer questions on the grounds of attorney-client privilege. Dutch law does not require licensure for lawyers to serve as in-house counsel, and Boonstra was not a licensed attorney. The court applied the “touch base” approach to determine whether U.S. or Dutch law would apply to the privilege issue. Pursuant to the “touch base” approach, the 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. The court found that the communications likely “touch[ed] base” with the U.S. because they related to legal issues arising out of defendants’ role in the administration of feeder funds involved in the Madoff scheme. The court held, however, that the result would be the same under either law. Under Dutch law, Boonstra’s communications were not privileged because communications with in-house counsel are privileged only if the lawyer is licensed and has taken certain steps to establish professional independence from the company. Defendants, relying on U.S. law, argued that they had a mistaken but reasonable belief that, although not licensed, communications with Boonstra would be privileged. The court rejected the “reasonable belief” argument. The defendants did not have any reason to believe that Boonstra was licensed (an issue of fact), but only had a mistaken understanding of Dutch law. The “reasonable belief” exception applies only in situations in which the client makes an “excusable mistake of fact;” the exception cannot be predicated on a mistake of law.