To effectively use any of the above options, a party must become familiar with potential obstacles to seeking cross-border discovery from foreign jurisdictions and must be able to navigate them. Parties should be aware that many foreign jurisdictions view U.S.-style discovery as overbroad and, in some instances, contrary to the foreign jurisdiction’s concepts of fairness.
In addition, data-protection laws may prohibit or restrict the transfer of personally identifying information outside participating jurisdictions. For example, the European Union’s General Data Protection Regulation (GDPR) adopts a presumptively prohibited approach, pursuant to which E.U. citizens’ personal data (often contained in discovery documents) cannot be sent out of the E.U. unless at least one mechanism is present to ensure that the data is adequately protected. Failing to comply with this requirement can expose both the sender and the recipient of the documents to significant liability.
Furthermore, to prevent U.S.-style discovery, many jurisdictions have enacted blocking statutes aimed at restricting the transfer of documents and information for use in foreign litigation.
A party responding to a request for discovery from abroad may invoke a foreign privilege or immunity as a potential defense. How courts analyze the issue may depend on the manner in which the request is made. For instance, while the Hague Convention has defined provisions by which a party may invoke a privilege, a party’s ability to invoke a privilege or immunity may be less clearly defined where the discovery request was made outside the Hague Convention.
In sum, a party should identify early on whether international discovery is viable and should be able to anticipate issues that will need to be address with the judge. Think about phrasing discovery requests to deal with anticipated discovery issues, and consider the following issues:
- the nature of the evidence at issue (i.e., depositions versus document production);
- the geographical location of the evidence;
- the subject matter of the evidence;
- the custodian or owner of the evidence (e.g., a party versus a nonparty);
- how parties anticipate requesting production of evidence;
- whether any parties intend to consent or object to a request;
- e-discovery issues;
- whether the Federal Rules of Civil Procedure will govern depositions;
- whether the U.S. court will resolve deposition disputes;
- the applicable treaties, conventions, and foreign laws or practices;
- whether consultation with local counsel is necessary; and
- practical obstacles or delays that may arise in the target jurisdiction, such as data-protection laws.