Wednesday, May 30, 2018

Deputy Assistant Attorney General Roger Alford Delivers Remarks at the National Autonomous University of Mexico (UNAM) Event Sponsored by the Federal Commission of Economic Competition (COFECE) in Mexico

See here.

Speech highlights:

Privilege issues in cross-border antitrust investigations do not exist in a vacuum and one must consider the legal framework that gives rise to discovery practices in the first place. In this regard, common law jurisdictions vary from civil law jurisdictions. And there is a considerable diversity of discovery protocols within each type of jurisdiction. Moreover, agencies may vary in their approach to privilege based on the underlying legal issue (e.g., a merger, civil non-merger, or criminal antitrust claim).

As competition agencies are converging with respect to sound antitrust enforcement, one of the important questions will be how to address questions of privilege going forward. This presents difficult issues of bridging civil and common law traditions.


But in a world of electronic communication and global business, this is a fundamental gap in privilege protections. 


One approach is to continue with the status quo and accept privilege pluralism among competition authorities. With this approach, antitrust counsel will continue their practice of recognizing the different types of privilege in different countries, and engage with their clients accordingly. That effectively means that agencies will continue with their current practices in gathering evidence and attorneys and clients will accommodate the privilege rules of each agency and communicate depending on the scope of the privilege in the relevant jurisdictions. 

In the case of a merger reviewed by multiple jurisdictions, this means that different privilege claims will be made to different agencies. When those agencies cooperate with another on merger investigations, certain agencies will have documents that other agencies might not.

A second approach is for competition agencies to recognize, formally or informally, the applicable privilege laws that naturally govern the relationship between the attorney and the client. This is the approach that the International Bar Association has recommended in a related context involving the transnational taking of evidence. Under this approach, the competition agency reviewing documents in a merger would exclude and not seek evidence or the production of any documents or oral testimony if there is a privilege under the legal or ethical rules the agency determines to be applicable to the attorney-client relationship. 

In the merger context, this might mean that even if an agency does not ordinarily recognize attorney-client privilege, it would nonetheless do so if the jurisdiction that has the closest nexus to the attorney-client relationship recognizes such a privilege. But it might also mean that even though an agency ordinarily does recognize privilege laws, it would nonetheless not recognize attorney-client privilege claims if the jurisdiction that has the closest nexus to the attorney-client relationship does not. As discussed above, this is not the approach the Antitrust Division has adopted or recommends.

A third approach is for competition agencies to apply the most protective of the possible privilege laws that might govern the relationship. Under this approach, when the parties are subject under applicable laws to different privilege rules, the agency should apply the same rule to all parties, giving preference to the rule that provides the highest level of protection. Obviously that is an easier solution for competition agencies in jurisdictions that already have robust attorney-client privilege laws, and more difficult for other jurisdictions. 

A fourth approach is for competition agencies to agree upon a uniform approach with respect to attorney-client privilege and adopt that approach as part of best practices in competition enforcement. There is some evidence of general support for this approach.

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