Assessment of Foreign Law Restricting Discovery

• Pages: 77-96

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CHAPTER IV

ASSESSMENT OF FOREIGN LAW RESTRICTING

DISCOVERY

A. Introduction

Foreign law often imposes obstacles to a U.S. litigant’s efforts in

obtaining discovery abroad. These obstacles, discussed more fully below,

impact the foreign discovery process across the full range of procedural

settings in which the discovery is sought and irrespective of the

mechanism the discovering party elects (or is compelled) to use. Thus,

whether the U.S. court has jurisdiction over the person from whom

discovery is sought and whether the discovering party proceeds under the

Hague Evidence Convention,1 through discovery mechanisms under the

Federal Rules of Civil Procedure, or by letters rogatory, local blocking

legislation, privacy laws, and testimonial privileges can circumscribe, if

not prohibit, discovery of otherwise relevant information.

B. Blocking Statutes and Privacy Laws

1. Blocking Statutes

A number of countries have adopted statutes to address the

extraterritorial application of United States laws generally, and in

particular discovery procedures, against foreign persons. True “blocking

statutes,” as a general rule, prohibit disclosure of information within the

enacting state in compliance with discovery requests or orders. 2 Such laws

obviously can present significant obstacles to U.S. litigants seeking

discovery from parties and nonparties located outside the United States. A

foreign party may not be able to fulfill its discovery obligations without

violating the law of its own country.

1. Convention on the Taking of Evidence Abroad in Civil and Commercial

Matters, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, reprinted

in 8 I.L.M. 37 (1969) [hereinafter Hague Evidence Convention].

2. RESTATEMENT (THIRD) OF THE FOREIGN RE LATIONS LAW OF THE UNITED

STATES § 442, n.4 (1987).

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Blocking statutes can be characterized as procedural, discretionary, or

industrial.3 Procedural blocking statutes prohibit compliance with foreign

discovery orders unless established foreign government procedures are

followed.4 Discretionary blocking statutes place within the purview of

government agencies the ability to prohibit compliance with foreign

discovery orders. 5 Industrial blocking statutes limit disclosures of

information regarding specific industries.6 Of course, some blocking

statutes are hybrids, for example, granting a government agency the

discretion to prohibit disclosures relating to certain industries.7 These

distinctions may be important for counsel to appreciate when advising on

responses to foreign discovery and arguing issues of compelled

compliance or sanctions. United States courts give considerable weight to

the extent a noncomplying party has made good faith efforts to comply

with discovery requests.8 The particular foreign legislation’s procedural

workings will often dictate what a party can do to demonstrate its good

faith.

2. Privacy Rights

Another potential obstacle to obtaining discovery outside the United

States is foreign privacy legislation. In a sense, such laws are similar to

blocking statutes. They embody blanket protection for large categories of

documents and may empower a government official with some level of

authority (and discretion) to approve or disapprove requests for

3. See generally GARY BORN, INTERNATIONAL CIVIL LITIGATION IN UNITED

STATES COURTS 972-73 (5th ed. 2011).

4. See, e.g., Loi N°80-538 du 16 juillet 1980 Relative a la Communication de

Documents ou Renseignements D'ordre Economique, Commercial ou

Technique a des Personnes Physiques ou Morales Etrangeres [Law 80-538

of July 16, 1980 Pertaining to the Disclosure of Documents and

Information of an Economic, Commercial, Industrial, Financial or

Technical Nature to Foreign Natural or Juristic Persons], JOURNAL

OFFICIEL DE LA REPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF

FRANCE], July 17, 1980, p. 1799 (France).

5. See, e.g., Protection of Trading Interests Act 1980, ch. 11 (Eng.); Foreign

Proceedings (Prohibition of Certain Evidence) Act 1984 (Austl.).

6. See, e.g., Canadian Uranium Information Security Regulations, SOR/76-

644 (Can.).

7. See, e.g., Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Austl.).

8. See, e.g., United States v. First Nat’l Bank of Chi., 699 F.2d 341, 346 (7th

Cir. 1983); Remington Prods., Inc. v. North Am. Philips Corp., 107 F.R.D.

642, 647, 651 (D. Conn. 1985).