Chinese Defendant Subject to US Discovery With Limited Ability to Assert Work-Products or Attorney-Client Privilege
Never bashful about breaking new ground, Judge Shira Scheindlin issued a detailed October 25, 2013 opinion on discovery against the Bank of China in Wultz v. Bank of China. The issues arise in a personal injury case that targets the Bank of China for allegedly aiding and abetting an international terrorist group.
The opinion is summarized well in a Katten Muchin article available on Mondaq. The thrust of the opinion revolves around choice-of-law issues, and comity. The outcome is that Chinese entities subject to litigation in the US are limited in their ability to invoke attorney-client or work-product privilege because Chinese law does not recognize the privileges. Another key factor is that Chinese law does allow some forms of discovery. The existence of some discovery in China stands in contrast to countries such as Korea that essentially do not allow discovery, at least according to the opinion. Judge Scheindlin rejected other district court opinions that take a narrower view of the law to be applied.
Valuable reading for anyone involved in litigation with Chinese entities.