The increasing globalization of business continues to thrust U.S. companies into discovery relating to documents and information that are located in other countries. Global discovery presents unique challenges for companies as they seek to comply with both U.S. and foreign legal requirements. Common law states, such as the United States, tend to have more expansive discovery practices, while civil law States, including most EU member states, have more restrictive discovery practices. This article briefly discusses some of the issues that companies should be aware of with respect to global discovery, provides an overview of the Hague Convention procedures, and concludes with practical suggestions to streamline global discovery efforts by building bridges between U.S. and foreign company personnel. Discovery in U.S. litigation arguably has the broadest scope of any country. Parties are allowed to seek discovery on documents, information, and things that are relevant to any party’s claim or defense and the information to be discovered need not be admissible, but only must appear to be reasonably calculated to lead to the discovery of admissible evidence.1 In practical terms, U.S. discovery can seem like a wide-ranging inquiry that sweeps in a large volume of information that is not, itself, admissible evidence. This approach to discovery may very well be novel and difficult to understand for a company’s foreign-based personnel. Further, there are few court rules or other regulations that meaningfully reduce the volume of information that is subject to discovery. In a real sense, there is a general presumption in the United States that information is properly discoverable. In much of the rest of the world, that presumption is reversed—and is expressed in various data transfer and data protection regulations. The practical effect of foreign regulations that prohibit the transfer of data or that impose strict privacy standards is that companies that are engaged in U.S. litigation often find their discovery obligations to be at odds with the local regulations where certain personnel or information resides. Companies cannot merely ignore the data transfer and data protection regulations of foreign countries in which they operate. At the same time, U.S. courts are generally not persuaded to limit a party’s discovery obligations simply because some of the discoverable information is protected by foreign regulations. The prevailing notion is that if a company is doing business in a U.S. jurisdiction, then it must abide by U.S. court rules, regardless of whether those rules create difficult situations for the company with respect to its foreign-based data. The primary types of foreign regulations that limit a U.S. company’s use of foreign-based information are local blocking statutes and EU Member State regulations that implement Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (EU Privacy Directive). The blocking statutes and data protection regulations vary country by country. While the specific scope of each country’s statutes is beyond the scope of this article, there are common elements that companies should be aware of.
Approaches to Global Discovery
Hague Evidence Convention
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