United States Discovery and Foreign Blocking Statutes

Author:Vivian Grosswald Curran
Position:Professor of Law, Distinguished Faculty Scholar, University of Pittsburgh.
Pages:1141-1149
 
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United States Discovery and Foreign Blocking
Statutes
Vivian Grosswald Curran
It is a privilege to contribute to this Issue of the Louisiana Law Review
dedicated to the career of my dear friend and admired colleague, Alain
Levasseur. His contributions to mutual common law and civil law
understanding are without parallel. The following Essay is intended as a
“translation” between the two legal cultures that Alain Levasseur has
illuminated for us throughout his professional life.
The reality between discovery in the United States and the foreign
blocking statutes that impede discovery in numerous civil law countries
has been an uncomfortable mixture of resistance, insistence, and conflict
for the nations involved. American courts grapple with the challenge of
understanding why they should adhere to strictures that seem to
compromise the fundamental rights of American plaintiffs, while French
and German lawyers and judges struggle with the challenges that United
States discovery rules pose to equally fundamental values in their legal
systems. This Essay seeks to address these issues.
In an era of transnationalized commerce, discovery in the United
States finds itself pitted against the blocking statutes that foreign nations
enacted to impede. Discovery in the United States has reached the status
of a quasi-constitutional—if not an outright constitutional—right.1 Judges
are highly reluctant to allow foreign defendants to diminish an American
plaintiff’s ability to discover evidence and frequently are also suspicious
that the blocking statute, offered as the reason for a foreign national’s
motion to withhold evidence, may be no more than a façade designed to
interfere with the American court’s jurisdiction. In Adidas (Canada) Ltd.
Copyright 2016, by VIVIAN GROSSWALD CURRAN.
Professor of L aw, Distinguished Faculty Sc holar, University of Pittsb urgh.
The Author wishes to express sincere gratitude to her colleague Rhonda Wasserman
for her helpful comments on an earlier draft.
1. See Imre Stephen Szalai, A Constitutional Right to Discovery? Creating
and Reinforcing Due Process Norms Through the Procedural Laboratory of
Arbitration, 15 PEPP. DISP. RESOL. L.J. 337, 374–75 (2015); Ganesh Bala, Note,
Discovery—First and Fifth Amendment Privileges—District Court Should
Balance Threatened Harm to Constitutional Rights Against Requesting Party’s
Need for Relevant Information in Deciding Whether to Order Civil Discovery of
Information Privileged Under the First and Fifth Amendments, 27 VILL. L. REV.
198, 200 (1981).

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