In this Note, Stephen Calhoun argues that the U.S. attorney–client privilege is under threat of being weakened as it applies to U.S. companies with international operations due to lesser protection for the privilege abroad.  Because of how the U.S. privilege operates, less protection in other countries could lead to less protection at home.  Calhoun states that for international companies, the attorney-client privilege “will no longer be defined by U.S. courts and lawmakers, but will instead be limited to the lowest common denominator of attorney–client privileges recognized abroad.” 

The Note focuses on the attorney–client privilege of the European Union and compares it to the privilege in the U.S.  Calhoun concludes that the scope of protection is much narrower under E.U. law.  According to the Note, this will have both direct and indirect consequences for U.S. international companies.  The direct implication is that certain communications that would otherwise be privileged in U.S. courts will be subject to disclosure in E.U. courts.  The Note goes further, however and argues that “some of the most significant effects . . . will be realized within the United States.”  The argument is that once otherwise privileged communications under U.S. law have been disclosed in an E.U proceeding, a U.S. court might hold the privilege waived as to the communications.  More severely, a U.S. court might determine that by simply acting in the E.U., with its narrower privilege rules, the communications were not made in confidence.  Thus, material previously undiscoverable in the U.S. would become discoverable by virtue of the company’s business abroad.  The Note concludes by assessing how tailoring the doctrine of selective waiver, which until now has been largely rejected by the federal courts, could solve the problem.