When a party asks a U.S. district court to preclude discovery based on foreign privacy or blocking statutes, it can put the court in the undesirable position of choosing between denying the requesting party access to potentially important discovery or compelling the resisting party to produce the information in violation of foreign law. For example, compare two decisions from the Eastern District of New York, Linde v. Arab Bank (balancing competing interests and precluding discovery based on Israeli privacy law) and In re Air Cargo Shipping Servs. Antitrust Litig. (balancing competing interests and compelling production of information that would cause resisting party to violate South African blocking statute). It should not be surprising that if a court is given procedural opportunities to avoid having to choose between giving effect to U.S. or foreign law, the court will usually choose to avoid the conflict.
To reduce the chance of getting caught on the losing end of this issue, when litigation presents the possibility that the opposing party will serve discovery requests for information located abroad, start thinking about Rule 44.1 of the Federal Rules of Civil Procedure. Rule 44.1 requires that “a party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing.” Courts have found this provision is not limited to parties seeking to rely upon foreign law for the substantive issues in a case, and it also applies to discovery. For example, where defendants recently sought to oppose discovery based on French privacy law in McAllister-Lewis v. Goodyear Dunlop Tires N. Am., Ltd., the U.S. District Court for the District of South Dakota held based on Rule 44.1 that the defendants waived the issue because they “did not explain in their responses to [the] plaintiff’s discovery requests the French privacy law upon which they relied.”
Addressing Foreign Privacy Law Early
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