Litigants are increasingly facing challenges concerning international discovery in connection with New York litigation. Given the broad scope of discovery permitted in the American judicial system, including the Commercial Division, litigants and courts alike wrestle with the conflict between broad, domestic discovery rules and foreign nondisclosure laws that preclude or limit the disclosure of certain information, at times presenting parties with the difficult choice of defying a New York court discovery order or violating a foreign nondisclosure law. When presented with this challenge, an increasingly important element in the court’s consideration is whether the responding party has made a good faith effort to comply with the discovery request.

U.S. Supreme Court Guidance

The leading United States decision on the tension between United States discovery and foreign nondisclosure laws is Société Internationale Pour Participations Industrielles et Commerciales v. Rogers, 78 S. Ct. 1087 (1958). As the Rogers court noted: “It is hardly debatable that fear of criminal prosecution constitutes a weighty excuse for nonproduction, and this excuse is not weakened because the laws preventing compliance are those of a foreign sovereign.” The Supreme Court subsequently reaffirmed this principle in Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 107 S.Ct. 2542 (1987) (“Aérospatiale“).

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