The United States is an outlier both in the amount of discovery permitted during litigation in its courts and in its willingness to assist evidence gathering on behalf of foreign and international courts. The readiness of U.S. courts to compel production by foreign parties of evidence located in foreign countries has at times spurred protests by those countries, particularly in the context of antitrust litigation. When that extraterritorial evidence is in the hands of a nonparty, U.S. courts must seek assistance from the country where the evidence is located because a court can only compel persons subject to its authority to testify or produce documents. To request such assistance, U.S. courts may invoke the Hague Evidence Convention or rely on letters rogatory, both of which are imperfect mechanisms. Meanwhile, Congress has broadly authorized the federal courts to assist with discovery on behalf of foreign or international tribunals through 28 U.S.C. § 1782.
Discovery is a formal process in which each party gathers information relevant to its case. Transnational discovery may be necessary to obtain information located abroad for use in U.S. courts or to obtain information located in the United States for use in foreign courts. As a general matter, courts may order parties subject to their…Continue Reading
A recently published note in the Columbia Law Review, written by Christabel Narh, draws a connection between the federal courts’ technological learning curve during the pandemic and the future of forum non conveniens. Zooming Our Way Out of the Forum Non Conveniens Doctrine argues that the federal courts’ trial-by-fire with videoconferencing and remote litigation during…Continue Reading
In the most recent issue of Judicature, Judge Michael Baylson and Professor Steven Gensler have a new article related to cross-border discovery—that is, discovery abroad in support of adjudication in U.S. courts. The whole article is worth readers’ time, though I will only briefly summarize it here. As TLB readers know well, cross-border discovery is…Continue Reading
The Foreign Sovereign Immunities Act (FSIA) provides immunity from execution for the “property in the United States of a foreign state.” It does not confer immunity on a foreign state’s property located abroad. The limitation makes sense: to the extent that a foreign sovereign’s property located outside the United States is not subject to the…Continue Reading