June 07, 2011 Articles

Discovery Practice in Conflict with China's State Secrets Law

By Josh Johanningmeier and Patricia Wheeler

Product liability litigants in American courts are accustomed to the broad scope of civil discovery, whereby anything "reasonably calculated to lead to the discovery of admissible evidence" is fair game. Fed. R. Civ. P 26(b)(1). Combine this standard with the exponential increase in the retention and availability of documents and other discoverable information arising from the dawn of the digital age, and the sheer volume of discoverable information can become overwhelming. With the 2006 e-discovery amendments to the Federal Rules of Civil Procedure, and the quick adoption by nearly half the states of e-discovery procedural rules that mirror the Federal Rules, the new electronic discovery requirements have an impact on both state and federal litigation. Indeed, presumed access to all discoverable information has led litigants and courts to expect that nearly any request may be met, provided someone is able to bear the financial burden. And, with the globalization of manufacturing and commerce, one might expect that those expectations know no borders, so long as the maze of the Hague Convention and local practice can be navigated. However, one noteworthy obstacle in China, home of the world's second largest economy and a country that manufactures products for sale around the world, may frustrate litigants and judges. China's draconian state secrets law, now more than two decades old, stands in the way of obtaining what would likely be seen as routine information in civil discovery. (Analysis of state secrets law is based on the translation of the law provided by the Congressional-Executive Commission on China.)

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