ABA Resolves To Encourage US Courts To Respect Foreign Privacy and Data Protection Laws

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.

4 responses to “ABA Resolves To Encourage US Courts To Respect Foreign Privacy and Data Protection Laws”

  1. […] which was heard in the Second Circuit earlier this week. The case is timely in light of the recent ABA resolution on Aérospatiale and foreign data protection […]

  2. […] denied the motion for a protective order. This decision illustrates the point the ABA made in its recent resolution: US courts are reluctant to give much weight to foreign blocking statutes. Whether they are unduly […]

  3. […] legislative history of the statute gives strong indications that it was never expected or intended to be enforce against French subjects but was intended rather to provide them with tactical weapons and bargaining chips in foreign courts.” Take that, ABA! […]

  4. […] February I posted on the American Bar Association’s resolution encouraging courts to “consider and […]

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