A party's attorney often plays the role of discovery of fact-finding in common law countries. This can be routinely observed in litigation in the United States. In civil law countries, the judge plays an investigatory role with minimal intervention from the attorney in civil law countries.
Discovery to many foreign observers is considered an American attorney's "fishing expedition."1 But to American litigation, discovery is as important as the trial process itself. This is because both the plaintiff and defendant use discovery to investigate and further explore each other's case. As noted in the California Rutter's Guide (a seminal attorney practice guide used by for understanding different civil procedure practices), the basic purpose of discovery is to take the "game" element out of trail preparing by enabling parties to obtain evidence necessary to evaluate and resolve their dispute beforehand.2 This is because discovery can be so revealing of a party's position that often attorneys are able to force a settlement before trial commences.
Discovery is intended to accomplish the following results: (1) to give greater assistance to the parties in ascertaining the truth and in checking and preventing perjury; (2) to provide an effective means of detecting and exposing false, fraudulent and sham claims and defenses; (3) to make available, in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with great difficulty; (4) to educate the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements; (5) to expedite litigation; (6) to safeguard against surprise; (7) to prevent delay; (8) to simplify and narrow the issues; and, (9) to expedite and facilitate both preparation and trial.3
II Meaning of discovery under U.S. Law (Common Law) and Civil Law countries
Under U.S. law (whether federal or state law), discovery can be mostly considered a voluntary process coupled with confusing state-federal distinctions. For example, Rule 26 Federal Rules of Civil Procedure (FRCP) requires a party to disclose certain information irrespective of whether the party received a discovery request or not for the elicited information. These disclosures include the following:
- the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information
- a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
- a computation of each category of damages claimed by the disclosing party--who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
- for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.4
When compared to other countries, these disclosures are rather broad. This is because most civil jurisdiction limit discovery to only that evidence that is directly relevant to the specific claims at issue and prohibits the production of evidence merely to obtain additional evidence.5 Use of the word "likely" in sub point (i) of Rule 26 suggests that disclosure obligations under U.S. law are far greater in scope as parties have the burden of determining whether certain information could likely relate to a claim. Of course, tactful attorneys will raise appropriate objections where broad discovery requests are made. As noted in Mitchell v. Roma,
True it is that the various instruments of discovery now serve as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to the issues. Thus, civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial. (citation omitted) No fixed rule as to disclosure is justifiable. One must balance the public interest in protecting the flow of information against the individual's right to prepare his defense, taking into consideration the particular circumstances of each case.6
Even in countries that follow a common law system, there are some subtle differences in how discovery is conducted. For example, in general, discovery can be used to obtain the testimony of a person who cannot attend trial.7 However, under the British system, discovery can be requested only after the interested party specifies the material to be examined and shows the relevance this material has to the case.8 Thus, the British system permits discovery that is questionably more limited in scope. Here too, judges will accept appropriate requests to quash certain discovery requests.
Nevertheless, the United States like other common law countries follows an adversarial system where attorneys assist the court (i.e the jury, where it exists) in 'discovering' facts. A judge's role is to decide relevant legal issues after the parties have engaged first in discovery amongst themselves, to hash out relevant facts, referred to as undisputed facts.9 In civil law countries, the discovery process involves a more active part from the judge and the goal of discovery is to instruct the judge so that he or she can decipher how a case should proceed.10 Additionally, in civil law systems, there is no need to apply discovery since many proceedings tend to be written rather than oral, and there is no real element of surprise or strategic advantage that discovery would otherwise help with.11 Thus, a U.S. attorney attempting to litigate in a foreign country shouldn't mistakenly assume that U.S. style discovery practices are practiced universally and should be conscientious of every country's systems. The same rules apply to foreign attorneys advising clients on litigation in the U.S.
One area of discovery that should be discussed is how U.S. courts treat the process of discovery with foreign litigants. A foreign defendant in litigation pending in the United States generally is treated differently from a foreign non-party for purposes of discovery.12 As a rule, discovery from a foreign party may be pursued under the federal or state rules of civil procedure. However, where discovery is from a foreign non-party, use of the Hague Evidence Convention may come into play. A full discussion of the Hague Evidence Convention has been provided for later in this article. Arguably, the Hague Evidence Convention was introduced primarily to counter any differences in evidentiary procedures between civil and common law countries. However, not all countries give precedence to the Hague Convention and many countries have opted to include treaty reservations, discussed in more detail later in this article.
Another area of conflict lies in document production requests involving companies with foreign subsidiaries. When foreign discovery requests are involved, the FRCP will require a party to produce documents in its "possession, custody, or control" while responding to a document request subject to privilege and other objections.13 Some courts have defined "control" to include the practical ability to obtain the documents irrespective of legal entitlement to the documents.14 Some courts have even required companies to apply a more rigorous alter ego standard before they will compel a party to obtain documents in the possession of a non-party affiliate, requiring not only common ownership or control, but also a disregard of the corporate form as between the affiliated entities.15 Such a provision gives U.S. courts broad powers—so much so that they can demand a company whose subsidiary is located in another country (bound by those country's laws to comply).
This essentially means that companies engaged in litigation that have foreign affiliates or subsidiaries may be compelled under U.S. law to produce documents that are in their subsidiary's control. In order to determine whether there is an obligation of affiliates or subsidiaries to produce documents, courts have resorts to a "control" test analysis. Courts will generally consider the nature of the relationship between the affiliated companies, such as whether the affiliated companies report to each other, whether the affiliated non-party has previously assisted with other aspects of the litigation, whether the party has had the ability to obtain critical documents from the affiliated non-party in the normal course of business, or whether the entities share a common corporate parent or primary shareholder.16
In re Investigation of World Arrangements with Relation to Production, Transp., Ref. & Distribution of Petroleum, the court explained:
If a corporation has power, either directly or indirectly, through another corporation or series of corporations, to elect a majority of the directors of another corporation, such corporation may be deemed a parent corporation and in control of the corporation whose directors it has the power to elect to office. If any corporation herein under the subpoena duces tecum has that power it has the control necessary to secure the documents demanded by the Government.17
Once control has been established, the next step involves actual evidence production. In the Judiciary and Judicial Procedure Code, Section 1781(a) authorizes the "letter rogatory or letter of request" method of requesting foreign judicial assistance similar to provisions in the Hague Evidence Convention. Historically, when discovery from foreign countries was procured, diplomatic channels were used where United States tribunals transmitted letters of request directly to the foreign tribunal, but Section 1781(b) of the Act does away with this requirement. Now, the foreign judiciary under the foreign country's internal rules and customary procedures will overlook and supervise the deposition examination or document production.18
From a practical point of view, lawyers should bear in mind that there could be conflicts between competing jurisdictions in granting requests. A U.S. court will seek to protect U.S. interests while a foreign court will seek to protect their own citizen's interests as well as their sovereignty to make decisions about discovery requests on their own terms. A California Court19 took the following view in explaining why sovereignty was so important to discovery procedures in civil law countries:
West Germany is a civil law state; apparently in common with other civil law states it takes the position that, in general, gathering of evidence within the state is exclusively the function of the state's courts and that any encroachment on this function by the courts or citizens of any foreign state may be regarded as a violation of West Germany's "judicial sovereignty." Until 1979, in general, West Germany recognized no international procedures for production of documents or inspection of premises within its territory, and suffered testimony to be taken within West Germany for use elsewhere, by procedures more or less comparable to common-law deposition, only by application of principles of international comity to recognized categories of testimony-taking.20
Additionally, the potential for conflict between the United States and a foreign country exists when an American court attempts to project this power of compulsion into a foreign country, notwithstanding the fact that the compulsion is directed toward a United States national or citizen.21 Standard rules under international conventions such as the Hague Evidence Convention strive to eliminate conflicting interests but the reader should note that despite the Convention's best efforts, some European foreign nations still block discovery requests through legislation, especially U.S. discovery requests.
III How is discovery conducted in different countries?
The differences in discovery methods between civil and common law countries have been highlighted already in some detail above. One popular type of legislation in civil law countries includes protectionist, blocking statues that many countries have imposed where citizens (litigating a dispute) are punished for disclosing information to other countries in international litigation.22 The first Blocking Statute was enacted by Canada, a common law country, but many Blocking Statutes were created in civil law countries specifically to block United States discovery.23 In Canada, the Business Records Protection Act was enacted after the District Court for the Southern District of New York ordered the Canadian subsidiaries of a New York corporation to produce documents located in Canada as part of a grand jury antitrust investigation.24 After Canada, other countries such as the Netherlands passed their own versions of Blocking Statutes. U.S. Courts recognize Blocking Statutes and construe them as purposefully to "provide [foreign nationals] with tactical weapons and bargaining chips in [United States courts]."25
Today, France, a civil law country has one of the broadest Blocking Statutes. On a plain reading of its code, the Blocking Statute applies to any cross-border discovery requests for "economic, commercial, industrial, financial, or technical documents for information" in connection with foreign judicial or administrative proceedings. Article 1 of the Blocking Statute reads:
Subject to international treaties and agreements, any physical person who is of French nationality or habitually resides in French territory, and any manager, representative, agent or employee of a legal entity which has its registered office or a place of business in France is prohibited from communicating, in writing, orally or in any other form, in any place whatsoever, to foreign public authorities, economic, commercial, industrial, financial or technical documents or information, the communication of which is to infringe upon the sovereignty, security or essential economic interests of France or upon the public order, as specified by the administrative authority to the extent that may be required.26
Article 3 of the statute imposed criminal penalties of up to 120,000 Francs ($20,000) and up to six months in prison.27 With such harsh criminal penalties, discovery becomes limited in cases where U.S. discovery requests are made to French individuals or corporations, as French citizens are not interested in attracting criminal sanctions. The French claim that American discovery infringes upon France's judicial sovereignty, the policy in civil law countries which vests all fact-finding authority in the trial court judge.28 When a document whose location is on French soil has been requested for use in a U.S. court, French litigants have protested the taking of pretrial discovery in accordance with American discovery procedures.29
In the U.S., blocking statutes are looked at with some speculation. One of the most pertinent comments about the French Blocking Statute came from a federal district judge in Adidas (Canada) Ltd. v. S.S. Seatrain Bennington.30 The court reasoned that since "preparatory acts" such as selecting deponents and documents do not require the participation of a foreign judicial entity, or the presence of an adverse party on foreign soil, they do not intrude on judicial sovereignty or custom.31 In rejecting a French defendant's demand for a protective order, the judge refused to take "at face value" the law's "blanket criminal prohibition against exporting evidence for use in foreign tribunals."32
Thus, blocking statutes have a significant role in preventing U.S. or other common law discovery requests. Arguably, because of this, common law countries are beginning to assert their own sovereignty over exporting U.S. evidence to foreign tribunals. This practice is contrary to the ideals of comity and justice. In part 2 of this article, we will look at how U.S. courts have responded to blocking statutes, discuss the issue of European data privacy, and consider the role of the Hague Evidence Convention.
- Borel & Boyd, Opportunities for and Obstacles to Obtaining Evidence in France for Use in Litigation in the United States, 13 Int'l Law. 35, 35 (1979).
- Burkhard Bastuck, Admission and Presentation of Evidence in Germany, 16 Loy. L.A. Int'l & Comp. L. Rev. 609 (1994).
- Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8A-1.
- Dietrich v. Bauer, 198 F.R.D. 397, 401 (S.D.N.Y. 2001).
- Erica M. Davila, International E-Discovery: Navigating the Maze, 8 U. Pitt. J. Tech. L. Pol'y 5 (2008).
- Fed. R. Civ. P. 26 (West, Westlaw through 2014).
- F.R.C.P Rule 34 on Producing Documents, Electronically Stored Information, and Tangible Things, or Entering Onto Land, for Inspection and Other Purposes.
- Gloria Esteban de la Rosa, Taking Discovery in the European Union, 1st Annual International Interdisciplinary Conference, AIIC 2013, April 24-26, Portugal.
- Greyhound Corp. v. Superior Court In & For Merced Cnty., 56 Cal. 2d 355, 376, 364 P.2d 266, 275 (1961).
- In re Grand Jury Subpoenas Duces Tecum Addressed to Can. Int'l Paper Co., 72 F. Supp. 1013 (S.D.N.Y. 1947).
- John C. Koosterman, Balancing Conflicts Between US and Foreign Laws in the Cross-Border Discovery Process, 2012 WL 3302383 (ASPATORE), 1.
- Loi No. 80-538 du 16 juillet 1980 relative à la communication de documents ou renseignements d'ordre économique, commercial ou technique à des personnes physiques ou morales étrangères, Journal Officiel de la République Française [J.O.] [Official Gazette of France], July 16, 1980, p. 1799.
- Lloyd Muse Diana, Discovery in France and the Hague Convention: The Search for A French Connection, 64 N.Y.U. L. Rev. 1073 (1989).
- Meeny T. Sasser, Discovery in Other States and Countries, BL FL-CLE 6-1.
- Mitchell v. Roma, 265 F.2d 633, 636 (3d Cir. 1959).
- Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 636 (D. Minn. 2000).
- Uniden Am. Corp. v. Ericsson Inc., 181 F.R.D. 302, 307.
- Volkswagenwerk Aktiengesellschaft v. Superior Court, 123 Cal. App. 3d 840, 176 Cal. Rptr. 874 (Cal. Ct. App. 1981).
- William D. Wood & Brian C. Boyle, Obtaining Foreign Discovery in U.S. Litigation, 63 The Advoc. (Texas) 12 (2013).
 Borel & Boyd, Opportunities for and Obstacles to Obtaining Evidence in France for Use in Litigation in the United States, 13 Int'l Law. 35, 35 (1979).
 Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8A-1
 Greyhound Corp. v. Superior Court In & For Merced Cnty., 56 Cal. 2d 355, 376, 364 P.2d 266, 275 (1961).
 Fed. R. Civ. P. 26 (West, Westlaw through 2014).
 See German Civil Procedure and Burkhard Bastuck, Admission and Presentation of Evidence in Germany, 16 Loy. L.A. Int'l & Comp. L. Rev. 609 (1994).
 Mitchell v. Roma, 265 F.2d 633, 636 (3d Cir. 1959).
 Gloria Esteban de la Rosa, Taking Discovery in the European Union, 1st Annual International Interdisciplinary Conference, AIIC 2013, April 24-26, Portugal.
 Id. at 982.
 John C. Koosterman, Balancing Conflicts Between US and Foreign Laws in the Cross-Border Discovery Process, 2012 WL 3302383 (ASPATORE), 1.
 Gloria Esteban de la Rosa, supra note 6, at 983.
 William D. Wood & Brian C. Boyle, Obtaining Foreign Discovery in U.S. Litigation, 63 The Advoc. (Texas) 12 (2013).
 See F.R.C.P Rule 34 on Producing Documents, Electronically Stored Information, and Tangible Things, or Entering Onto Land, for Inspection and Other Purposes.
 Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 636 (D. Minn. 2000) (defining "control" as "the practical ability to obtain the documents from another, irrespective of legal entitlement to the documents")
 William D. Wood & Brian C. Boyle, supra note 11, at 14.
 See, Dietrich v. Bauer, 198 F.R.D. 397, 401 (S.D.N.Y. 2001) (finding that parent company could be compelled to produce documents in possession of its wholly-owned subsidiary in light of the companies' common ownership and managing executives and the parent company's oversight of the subsidiary, which included establishing company-wide policies and exercising operational and financial control over the subsidiary); Uniden Am. Corp. v. Ericsson Inc., 181 F.R.D. 302, 307 (M.D.N.C. 1998) (compelling party to produce documents in possession of non-party affiliated company because officer of party reported to officer of affiliated company).
 In re Investigation of World Arrangements with Relation to Prod., Transp., Ref. & Distribution of Petroleum, 13 F.R.D. 280, 285 (D.D.C 1952).
 Meeny T. Sasser, Discovery in Other States and Countries, BL FL-CLE 6-1
 Volkswagenwerk Aktiengesellschaft v. Superior Court, 123 Cal. App. 3d 840, 176 Cal. Rptr. 874 (Cal. Ct. App. 1981).
 Meeny T. Sasser, Discovery in Other States and Countries, BL FL-CLE 6-1.
 Erica M. Davila, International E-Discovery: Navigating the Maze, 8 U. Pitt. J. Tech. L. Pol'y 5 (2008).
 Id. at 11.
 Erica M. Davila, supra note 27, at 11.
 See Loi No. 80-538 du 16 juillet 1980 relative à la communication de documents ou renseignements d'ordre économique, commercial ou technique à des personnes physiques ou morales étrangères, Journal Officiel de la République Française [J.O.] [Official Gazette of France], July 16, 1980, p. 1799 [hereinafter French Blocking Statute] (imposing a blanket prohibition of disclosure of information in France to foreign public authorities).
 Diana Lloyd Muse, Discovery in France and the Hague Convention: The Search for A French Connection, 64 N.Y.U. L. Rev. 1073 (1989).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.