Judicial cross border litigation and/or international arbitration proceedings reveal two distinct systems: common law systems allow a comprehensive collection and disclosure of all existing documents leading to admissible evidence, while civil law systems—particularly in France — restrict disclosure of evidence to documents that are admissible at trial and produced by the parties themselves. Notably, limitations on United States (US) discovery rules are imposed through the French blocking statute, which intends to protect sovereignty of France as well as its economic and security interests.
A French in-house counsel may be required to advise a company — which may or may not be the subsidiary of a US company — which has been requested to communicate documents and information within the context of a US investigation in a civil or a commercial matter. The in-house counsel will need to clarify the possible choices and risks the company faces when dealing with discovery in France: (i) cooperate with US authorities and be subject to sanctions in France relating to the French blocking statute and/or the data privacy law, or (ii) invoke the French protecting tools to refuse compliance with the US authorities' request, leading to sanctions within the foreign proceedings.
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