Litigants in overseas proceedings can apply for a U.S. court’s permission to seek discovery in the United States under 28 U.S.C. § 1782. In 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), German company B&C, complaining about a failed overseas deal, sought discovery from New York private equity firm Lindsey Goldberg for use in European criminal investigations. Among other things, B&C sought the private equity firm’s communications with U.S. law firms. such as Cravath, Weil Gotshal, etc.
Southern District of New York Magistrate Judge Figueredo applied the “touch base” test in ruling that German law governed because the “transactions [were] governed by German law, and the attorneys involved were all providing advice on German law.” Id. at *10. To B&C’s undoubted delight, the judge first noted that “German law does not recognize the attorney-client privilege in civil proceedings.” Id. at *15. But to B&C’s undoubted dismay, the judge then explained that “German law does not afford litigants pre-trial discovery.” Id. Because under the “touch base” test a U.S. court will not apply foreign law if it is “contrary to the public policy of [the U.S.] forum,” the judge ultimately applied U.S. privilege law. Id. at *5.
Next week’s Privilege Point describes one more twist, which provided a little good news for B&C.
