18 July 2008

Ranbaxy - privileges

Much of the US District Court (Southern District, Maryland) motion by the US Dept of Justice centers around attorney-client privilege and work-product privilege. The two privileges are not well understood in the Indian context, though the attorney privilege is broadly understood and is in fact used without any substantial challenges in Indian courts. The work-product privilege is a more limited privilege but is similar to the attorney client privilege in many respects. I hope to discuss this issue in more detail in a later blog. From a big picture, the attorney client privilege
a) belongs to the clients i.e. only the client can waive the privilege, not the attorney
b) it is possible to waive the privilege
c) before Sept 2001, this was a zealously guarded right of clients and allowed clients to confide in their lawyer without any chance of the lawyer blowing the whistle. Since then, it has been chipped away constantly both by the legislature and the courts there.

According to a press report by DNA, the Ranbaxy issue centers around the US government pressing Ranbaxy to waive all privileges and thus making them disclose fully even though they are not obliged to do so. To the best of my knowledge, waiving the privilege does not create an adverse inference against the client. (By contrast asserting the 5th amendment i.e. right to remain silent, could create an adverse inference against a person).

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