© FOLEY & LARDNER 2003 WHEN PRINTING IN BLACK & WHITE: Go to the TITLE MASTER SLIDE, delete the logo and place this logo on the slide. “ Attorney-Client-Privilege”

© FOLEY & LARDNER 2003

“Attorney-Client-Privilege” in Japan AIPLA 2004 Mid-Winter Institute Japan committee pre-meeting

January 28, 2004

Yoshimi [email protected][email protected]


Topics

I. How attorney-client communications are protected in Japanese civil procedure

I-A Attorney’s toolsI-B Client’s toolsI-C Foreign Attorney’s tools I-D Summary

II. Difference of “ACP” between the US and Japan


1. How AC communications are protected in Japanese civil procedure

No published court decision in Japan

Rarely discussed among scholars

Mostly discussed in US litigation


1-A Attorney’s tools to shield AC communications

Testimony (Article 197 I(2)*)– Attorney can refuse to testify regarding

facts that:(i) were obtained in the course of professional duties and (ii) should be kept secret (“Facts”).

Document Production (Article 220 (4)(c))– Attorney can refuse to produce

documents that contain Facts.

*The Code of Civil Procedure in Japan


1- A Attorney’s tools to shield AC communications (2)

Who is “Attorney” under Articles 197 and 220?–Bengoshi (attorney-at-law)–Benrishi (patent attorney)–Gaikokuho-Jimu-Bengoshi–Foreign Attorneys?


1- B Client’s tools to shield AC communications - Testimony

Testimony (Article197 I(3))Clients can refuse to testify regarding matters relating to secrecy of technology or profession (“Matters”).

What are “Matters”?Disclosure of which would cause detrimental effects to professional activities or activities based on technology [-balancing interests]

(Supreme Court decision, March 10, 2000)


1-B Client’s tools to shield AC communications - Document Production

Clients can refuse to produce documents:

(1) if documents contain “Matters” covered by 197 I(3) (Article 220 (4)(c)), or

(2) if documents were created for sole purpose of Clients’ use (Article 220 (4)(d))


1-B Client’s tools to shield AC communications - Document Production (2)

What are the documents created for sole purpose of Clients’ use?(1) for sole purpose of internal use(2) not expected to be disclosed to third

parties, and(3) disclosure would seriously harm Clients

who possess documents, such as impeding decision making process.

(Supreme Court decision, November 12, 1999)


1-C Foreign Attorneys’ tools to shield AC communications -Testimony

Testimony (Article197 I(3))

Foreign Attorneys can refuse to testify regarding matters relating to secrecy of technology or profession if disclosure would cause detrimental effects to Clients’ activities.


1-C Foreign Attorneys’ tools to shield AC communications – Document Production

Document Production (Article 220 (4)(c))

Foreign Attorneys can refuse to produce documents that contain “Matters” covered by 197 I(3).


1-D How AC communications are protected in Japan – summary (1)

Attorney, Client and Foreign Attorney can shield AC communications but the scope of communications to be shielded could be different.


1-D How AC communications are protected in Japan – summary (2)

Attorney

Client

Foreign

Attorney

• Facts obtained in the course of professional duties

• Matters disclosure of which would cause detrimental effects to professional activities or activities based on technology

• Documents created for sole purpose of internal use

• Matters disclosure of which would cause detrimental effects to professional activities or activities based on technology of CLIENTS.


2 Difference of “ACP” between US and Japan

U.S. promote full and frank

communications, observance of law and efficient administration of justice

Client & Attorney

communications

Japan protect Client’s

trust in Attorney’s statutory secrecy obligation

Attorney

facts

Purpose

Whose files protected

What is protected