Preface

• Pages: 17-19

xvii

PREFACE

Evidence located outside of the United States is becoming

increasingly important in U.S. litigation of antitrust cases. The success of

litigation often depends on the ability of parties to secure access to

evidence abroad. As the U.S. legal system is unique in its approach to civil

litigation, the collection of foreign evidence for use in the United States

commonly encounters resistance from foreign parties, courts, and even

governments that often have a different tolerance for discovery in general,

and more particularly the export of discoverable materials. Consequently,

securing such evidence requires an understanding of the applicable laws

and norms not only in the United States but also the country where the

evidence or witness is located. The purpose of this book is to discuss those

laws and norms.

The first three chapters of the book are devoted to the application of

U.S. law. Chapter II details discovery under the Federal Rules of Civil

Procedure, providing both an overview of the scope of these rules and a

close examination of the specific methods of discovery under the rules.

Many of the concepts discussed in Chapter II will be readily familiar to

U.S. practitioners. Although U.S. courts apply their own procedural law to

discovery requests made in the context of U.S. litigation, there are several

international conventions to which the Unites States is a party. Chapter III

identifies the relevant international conventions and explains how each

applies to the collection of evidence located in one jurisdiction for use in

a foreign jurisdiction. Chapter IV details the common ways foreign law

creates obstacles to U.S. litigants obtaining discovery abroad—these

include blocking statutes, privacy laws, and privileges.

A discussion of legal issues relating to the collection of evidence

abroad would be incomplete if it were limited to U.S. law. It is equally

important to understand the laws of the foreign jurisdiction where the

evidence is located. Many foreign countries have adopted a restrictive

disposition toward discovery requests emanating from the United States.

Chapters V through XX address the laws of Australia, Belgium, Brazil,

Canada, China, France, Germany, India, Italy, Japan, the Netherlands,

South Africa, South Korea, Switzerland, Taiwan, and the United Kingdom

as they apply to discovery requests emanating from U.S. civil courts. The

book, therefore, provides a comprehensive guide to conducting U.S.-based

discovery in foreign jurisdictions.