Document Type

Article

Publication Date

2017

Abstract

U.S. Courts generally prefer applying the Federal Rules of Civil Procedure over The Hague Evidence Convention for the taking of documentary evidence located abroad. With respect to the French blocking statute with which the Supreme Court was dealing in the seminal case of Aérospatiale, and under the powerful influence of stare decisis, a line of cases developed dismissing the French blocking statute for having been intended by its legislature principally to thwart the sovereignty of the U.S. trial court, and never having been intended to be enforced. Criteria for the general assessment of blocking statutes have emerged from the courts’ weighing of factors involving the French statute against that of other countries, but traditionally with a broad tendency to favor discovery and disfavor foreign blocking statutes. The most recent cases seem to be more open to according greater weight to foreign state interests, in what appears to reflect the US. Supreme Court’s increased attention to international comity and a strengthened presumption against the extraterritorial application of U.S. laws.

A corollary to documentary evidence gathering abroad has been the Section 1782 motion for discovery in the United States. A controversial instance concerns petitioners litigating in foreign legal proceedings where the forum court does not permit such discovery and where the sole connection to the U.S. court is the production of evidence within its jurisdiction that is located abroad and may have originated abroad. The only U.S. Supreme Court ruling on Section 1782 absolved U.S. courts from inquiring into the foreign court’s discovery practices and legal system, a tradition that continues to be observed as much as possible, but is ripe for modification in an era in which the courts must, and therefore do, engage with foreign law, however reluctantly.

Newer discovery issues have arisen in the area of data location where computer servers store information in locations that have blocking statutes, but where the defendant may nevertheless have access to the information at different sites. The deterritorialization inherent in digitalization gives rise to novel issues in terms of international comity. This article addresses developments to date, which include how e-discovery is interfacing with a particular federal statute in an illustrative manner. It concludes that U.S. discovery law today must adapt to current conditions by developing tools for comparative law competence and interdisciplinary analysis.

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