Foreign litigants in U.S. courts can find themselves caught between discovery orders formulated under the broad disclosure principles animating the Federal Rules of Civil Procedure and far more restrictive privacy-driven laws of other countries in which they are located, forbidding the very disclosures required by U.S. court order. Hoping to spare these litigants the dilemma of having to choose between violating foreign law or a U.S. discovery order, the American Bar Association adopted a resolution in February 2012 calling for U.S. courts to be more receptive to foreign data protection and privacy laws when considering discovery requests in civil litigation.1
That resolution left Southern District Judge Richard J. Sullivan unmoved when recently proffered as partial support for a motion brought by Bank of China for relief from an earlier discovery order in Gucci America v. Weixing Li.2 That case, and Tiffany (NJ) v. Qi Andrew,3 both discussed below, illustrate contrasting approaches to how judges in the U.S. District Court for the Southern District of New York, faced with almost identical facts, balance the competing domestic and international concerns implicated by these discovery demands.
‘Tiffany’ and Initial ‘Gucci’
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