Case of the Day Behrens v. Arconic

The case of the day is Behrens v. Arconic, Inc. (E.D. Pa. 2019). The case arose out of the Grenfell Tower tragedy in 2017. The cladding on the building that allegedly exacerbated the fire was manufactured by AAP S.A.S., a French subsidiary of Arconic. In discovery, the plaintiff sought documents that, according to Arconic, were in the possession of AAP, and Arconic raised an issue under the French blocking statute.

Today’s decision isn’t a decision on the merits of the Aérospatiale issue that courts must confront when faced with a claim that foreign law forbids otherwise permissible discovery. Rather, the judge appointed Noëlle Lenoir as a master and as an expert under FRCP 44.1 to give a report and recommendation about the application of the French blocking statute to the facts of the case. Lenoir, a French stateswoman, is a friend of Letters Blogatory and is eminently qualified to give an opinion. She is no friend of US discovery when it runs up against French law, but as I understand the appointment, she is not being asked to opine about how the Aérospatiale analysis should come out, but only about what French law has to say. On the other hand, the judge himself seems inclined to take Arconic’s objections maybe more seriously than the precedents suggest he needs to do: he referenced the work of Working Group 6 of the Sedona Group, whose principles call for “due respect to the Data Protection Laws of any foreign sovereign and the interests of any person who is subject to or benefits from such laws.” Of course, “due respect” does not itself have a lot of content, since the question really is what respect is “due.” But the overall feel of the case is of an outlier that, unlike most American cases, takes the blocking statute quite seriously indeed.

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