Last week’s Privilege Point described a Southern District of New York magistrate judge’s application of the “touch base” privilege test to a German company’s application to conduct discovery of a U.S. private equity company’s communications with its U.S. lawyers about a failed German transaction. In re B&C KB Holding GmbH, No. 22-mc-00180 (LAK) (VF), 2025 U.S. Dist. LEXIS 124466 (S.D.N.Y. July 1, 2025).
Magistrate Judge Valerie Figueredo (1) noted that German law does not recognize the attorney-client privilege in civil proceedings but (2) does not allow pre-trial discovery. Id. at *15. Because stripping away privilege would be “contrary” to U.S. public policy, the judge applied U.S. privilege law. Id. at *5. She then concluded that (3) the private equity company waived its privilege protection for communications it shared with an investment bank, a trust management service provider and a financial services provider. Id. at *20-22.
This potentially good news for the German company seeking discovery rested on the judge’s conclusion that those outsiders were providing financial advice about the transaction — rather than translating or interpreting financial concepts so the lawyer could provide effective advice, à la the frequently cited but rarely applicable Kovel doctrine.
