Many legal issues are easier to articulate than they are to resolve. For example, suppose State Y does not recognize a testimonial privilege but a witness is called to testify from State X which does recognize the privilege. Can the witness who holds the privilege claim it during litigation pending in State Y? Due to differing legal constructs applied by state courts, it can be an onerous task for counsel to determine whether certain documents or communications are considered privileged or are discoverable in interstate litigation.
Conflicts laws are esoteric and those involving privilege are no different. The most analytical approach comports with Section 139 of the Restatement (Second) of Conflicts of Law. This Restatement focuses on more of an “interest based test” or a “most significant relationship analysis” to resolve privilege disputes.
Section 139 states: (1) Evidence that is not privileged under the local law of the State which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum. (2) Evidence that is privileged under the local law of the State which has the most significant relationship with the communication but which is not privileged under the local law of the forum will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect.
The analysis can yield inconsistent results. If one is drawn into a litigation outside the jurisdiction where certain privileged communications took place and counsel is weighing the intricacies of Section 139, consider the following.
- Understand the rules and the law in the conflicting jurisdictions so that one has a working knowledge of how the conflict of law issues regarding privilege may be resolved.
- Consider that the forum court may give effect to a foreign privilege if it was relied upon by the parties or if they were aware of the existence of the privilege during the time-frame of the communications.
- Understand that if the foreign privilege is generally similar to one or more privileges found in local law, the forum court may be more inclined to give effect to the foreign privilege.
- Assess whether the forum state’s contacts are quantitative and qualitative; if so, the forum court may weigh less the importance of applying the competing foreign privilege.
- Include the most favorable choice of law provisions in any contractual relationship if one is in a position to draft such a provision. Furthermore, outline that the choice of law extends to any disputes involving privileged communications or documents.
- Within the bounds of reasonableness, limit confidential communications or materials to necessary parties.