At its recent meeting, the House of Delegates of the American Bar Association passed a resolution regarding respect for foreign blocking statutes and data protection laws in pretrial discovery in US civil actions. The resolution reads:
RESOLVED, That the American Bar Association urges that, where possible in the context of the proceedings before them, U.S. federal, state, territorial, tribal and local courts consider and respect, as appropriate, the data protection and privacy laws of any applicable foreign sovereign, and the interests of any person who is subject to or benefits from such laws, with regard to data sought in discovery in civil litigation.
The resolution was accompanied by a detailed and well-written report. The basic theme of the report is that US courts tend to underprioritize foreign blocking statutes and data protection laws when carrying out the Aerospatiale analysis. I think the report is a useful reminder to courts to take Aerospatiale seriously, whether or not one thinks that courts that take Aerospatiale seriously would require first resort to the Hague Evidence Convention more often than they do today. The report assumes throughout a US plaintiff seeking discovery from a foreign defendant. It’s worth noting that sometimes foreign plaintiffs seek to invoke foreign blocking statutes, and in those cases I think the Aerospatiale analysis must tilt sharply towards application of the Federal Rules of Civil Procedure.
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