The Recognition of Foreign Privileges in United States Discovery Proceedings

Riechenberg, Kurt | January 1, 1988

Discovery of evidence that is not available in the United States is a frequent problem in international litigation before United States courts. A common element of international litigation in such complex cases is that key witnesses reside abroad or crucial business documents belonging to foreign litigants are located in other jurisdictions. Due to the fact-dependent nature of these cases, courts in the United States have been confronted with numerous legal and practical obstacles in their attempts to obtain evidence, whether written or oral, from foreign litigants or non-party witnesses. Discovery orders of United States courts relating to testimonial or documentary evidence situated in foreign countries have generated a great deal of legal and political controversy, not only in the area of private suits but also in the field of agency and grand jury investigations. The reasons for these conflicts are numerous and have given rise to an abundance of legal writing. Nevertheless, no guidelines as to how these international discovery disputes could be resolved have emerged. As will be demonstrated, one of the reasons for the continuing uncertainty is the insufficient evaluation of foreign laws opposing United States discovery proceedings.