International Discovery
International Discovery
Cross-border discovery turns on the tension between U.S. discovery obligations and foreign law. Candidates must know The Hague Convention on the Taking of Evidence Abroad (its procedures, central authorities, and the fact that many civil-law states object to pre-trial discovery), letters rogatory, and 28 U.S.C. § 1782 (federal assistance to foreign tribunals). Know the blocking statutes-France's Article 1 bis of Law 80-538 and the EU's GDPR as a data-transfer regime with its own lawful-transfer mechanisms (adequacy decisions, SCCs). Understand comity analysis, especially the Restatement (Third) § 442 factors and the Société Nationale Industrielle Aérospatiale v. U.S. District Court holding that the Hague Convention is not exclusive. Know data localization laws and the practical role of cross-border collection protocols (on-the-ground forensic imaging, EU-based processing).
Traps: assuming the Hague Convention is mandatory when the U.S. is a party; ignoring that GDPR applies to processing, not just transfer; treating a blocking statute as an absolute bar rather than a comity factor; and overlooking that foreign data subjects may have rights to notice or erasure.
Rule of thumb: for any custodian or data source outside the U.S., ask three questions in order-(1) where does the data physically reside, (2) what law governs its transfer and processing, and (3) what is the least intrusive lawful collection method? Document the comity analysis.
Worked example: A French subsidiary's employee data sits on servers in Paris. U.S. counsel issues a subpoena. The correct approach weighs comity factors, considers GDPR lawful-transfer mechanisms, and may use a French-conducted collection or Hague procedures-rather than simply compelling U.S.-based production without analysis.