E-Discovery in Cross-Border Litigation: Taking International Comity Seriously

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With the possible exception of civil jury trials, no feature of the U.S. legal system is treated with as much apprehension abroad as pretrial document discovery. Most other national legal systems do not permit the kind of party-conducted and intrusive pretrial document discovery that U.S. litigators believe is essential to a full and fair settlement of disputes. Other countries restrict or prohibit parties from obtaining documents and often place pretrial investigation in the hands of judges. Differing fundamental views on the nature of state sovereignty and the proper balance of competing values in dispute resolution account for these differences in practice. The divergent value judgments have long been apparent in cases involving foreign litigants or witnesses in U.S. courts and have led foreign states to object to executing requests for documentary evidence for use in U.S. proceedings, sometimes frustrating the effective functioning of the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters.1 But the gulf between the United States and other countries when it comes to discovery practices has further widened with the rapid expansion of e-discovery in the United States.

This article discusses the ways in which the discovery of electronically stored information (“ESI”) poses special challenges to foreign litigants (both parties and nonparty witnesses) in U.S. courts – who are often stuck between conflicting legal obligations – and strains the channels of international judicial cooperation. We suggest that international comity, which the Supreme Court has explained should play a prominent role in district courts’ regulation of international discovery and should have heightened application when it comes to requests for ESI because unfettered e-discovery is so offensive to many foreign legal systems’ concepts of fairness, privacy, and sovereignty.

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