In federal court, with jurisdiction over the foreign entity, discovery of foreign companies in U.S. litigation may be obtained through federal rules of civil procedure. Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522 (1987). However, a foreign company may be placed into conflict where it either complies with U.S. discovery demands and risks criminal liability or other sanctions for violation of its own data privacy laws, or complies with its home law and risk sanctions in the U.S. litigation. In Aerospatiale, the Supreme Court expressly recognized a need for “special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position,” and that courts recognize “the demands of comity in suits involving foreign states, either as parties or as sovereigns with a coordinate interest in the litigation.”

The European Union’s General Data Protection Regulation (GDPR), enforced on May 25, 2018, imposes a set of rules and restrictions on how personal data is handled and transferred. Notably, compliance by American companies with the EU-U.S. Privacy Shield does not ensure full compliance with GDPR, inasmuch as that Privacy Shield was meant to provide a provisional remedy. Companies must still comply with GDPR to the extent the jurisdictional parameters are met.

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