May 27, 2011 Articles

Getting the Discovery You Need When It Is on the Other Side of the World

By Megan Jury and Sara Athen

As globalization continues to expand, domestic retailers and suppliers are increasingly purchasing products manufactured by foreign entities. Doing business with foreign manufacturers raises new issues and concerns for domestic retailers and suppliers, especially in the context of product liability litigation. One important consideration is how a domestic retailer or supplier will obtain the evidence necessary to build its defense when the documents and knowledgeable individuals are located in a foreign country. This is an especially significant concern when the foreign manufacturer is not a party to the domestic litigation.

There are no easy solutions for domestic litigants needing to acquire documents from a non-party in a foreign country. Although the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters purports to facilitate obtaining evidence abroad, there are still fundamental problems associated with domestic litigants attempting to obtain documents and depositions in a foreign country. Most foreign countries simply do not allow anywhere near the breadth of discovery that is typical in domestic litigation. In fact, American discovery practices are viewed with hostility in many other countries and in some cases are even illegal. Accordingly, there are many procedural hurdles to obtaining documents and depositions from a foreign entity and it is important to consider the rules, procedures, laws, and customs of the foreign jurisdiction when seeking discovery from abroad.

Premium Content For:
  • Litigation Section
Join - Now