“ Attorney-Client-Privilege” in Japan AIPLA 2004 Mid-Winter Institute Japan committee pre-meeting January 28, 2004

1. “Attorney-Client-Privilege” in JapanAIPLA 2004 Mid-Winter Institute Japan committee pre-meetingJanuary 28, 2004 Yoshimi Ohara yohara@foley.com yoshimi_ohara@noandt.com

2. Topics • How attorney-client communications are protected in Japanese civil procedure I-A Attorney’s tools I-B Client’s tools I-C Foreign Attorney’s tools I-D Summary • Difference of “ACP” between the US and Japan

3. 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

4. 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

5. 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?

6. 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)

7. 1-B Client’s tools to shield AC communications - Document Production • Clients can refuse to produce documents: • if documents contain “Matters” covered by 197 I(3) (Article 220 (4)(c)), or • if documents were created for sole purpose of Clients’ use (Article 220 (4)(d))

8. 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)

9. 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.

10. 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).

11. 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.

12. 1-D How AC communications are protected in Japan – summary (2) • 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. • Attorney • Client • Foreign Attorney

13. 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