June 26, 2018 Articles

A Home-Court Advantage?: International Discovery in a Global Economy

Unlike in most foreign jurisdictions, one of the key tools for litigation in the United States is its extensive allowance for discovery.

By Zahava Moerdler

The scope of litigation today has changed with the rise of the globalized economy. The historical approach for domestic-based disputes has shifted to adapt to disputes between corporations and individuals located around the world. This has created discovery issues.

One of the key tools for litigation in the United States is its extensive allowance for discovery. Yet, most foreign jurisdictions do not view as acceptable or enable such broad-based discovery. Litigators, corporations, individuals, and courts grapple with this situation. For litigation in the United States, how does a party navigate a guarantee of broad discovery with restrictive foreign rules? For foreign-based litigation, how does a party navigate broad discovery and its implications on litigation when it is a United States–based individual or corporation?

This article will briefly set the stage for these complicated dynamics by examining (1) an introduction to 28 U.S.C. § 1782 and the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention), (2) background on recent U.S. Supreme Court rulings that implicate discovery in international cases, and (3) a brief analysis of how foreign litigants from Israel and Germany navigate differences in discovery between their own jurisdictions and the United States.

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