Attorney-client privilege is one of those third-rail issues that evoke strong reactions in both attorneys and laypeople. In the United States, the privilege is pretty robust, for both lawyers in private practice and in-house.
Not so much in France though—indeed, in much of Europe.
In France, communications between in-house attorneys and other employees on legal matters, as well as lawyer memos and notes, says a client note from the firm Quinn Emanuel, are subject to discovery. This causes a double bind for the attorneys, because while those documents are discoverable, U.S. courts generally are hostile to claims by French companies that producing documents in France will subject them to prosecution in France under its “blocking” statute—a law there that imposes criminal penalties for producing documents in another country.
That situation has let to the fact that French companies have historically been the subject of some of the biggest penalties assessed by the U.S. Department of Justice, says the note. So French politician Raphaël Gauvain, worried about the effect on French competitiveness, has proposed legislation that would bolster penalties for French companies that produce documents absent a French court order and, more importantly, expanding attorney-client privilege to include the in-house bar.
The legislation is still in the proposal stage. Gauvain sent a report to France’s prime minister, Edouard Philippe for study.