U.S. courts have seen a significant increase in the number of lawsuits involving both U.S. and Japanese corporations. In deciding these cases, U.S. courts may have to choose how to apply the attorney-client privilege to in-house lawyers retained by corporations in Japan, where the legal system and discovery rules are fundamentally different from those of the United States. U.S. courts would most likely analyze these situations under the Remy-Martin/Minolta test and recognize the attorney-client privilege only for managers of legal departments in Japanese corporations, not for other non-bengoshi (non-licensed) in-house lawyers. This will change in the near future, however, when Japanese corporations start to retain bengoshi, graduates from new Japanese law schools, as in-house lawyers. Meanwhile, Japanese corporations may still be able to protect confidential information by using legal managers, U.S. and Japanese licensed in-house lawyers, in-house lawyers acting as agents, and Upjohn memoranda. The Japanese government may also be able to support Japanese corporations by signing the Hague Evidence Convention with declaration and reservation, amending the Code of Civil Procedure provision regarding privilege, and most importantly, raising the bar passage rate for graduates of Japanese law schools. These measures would more likely protect confidential corporate information, regardless of whether U.S. courts recognize the attorney-client privilege for Japanese non-bengoshi in-house lawyers.
How Can Japanese Corporations Protect Confidential Information in U.S. Courts?,
40 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol40/iss2/5