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The French blocking statute, the Hague Evidence Convention, and the case law: lessons for French parties responding to American discovery
08/24/2011
Pierre Grosdidier, Ph.D.

The breadth of United States (U.S.) discovery rules generates both consternation and controversy within foreign legal circles, even in the United Kingdom where discovery originated.¹ U.S.-style discovery offends the sovereignty of civil-law countries where court officers play an inquisitorial role and control the search for evidence.² Many countries, such as France, have taken two measures to streamline discovery demands made on their citizens by U.S. litigation. First, these countries have enacted blocking statutes that criminalize the very act of exporting information requested in the course of foreign legal proceedings.³ Second, these countries have signed the Hague Evidence Convention, which provides formal procedures for responding, to a limited extent, to these requests.⁴

Blocking statutes create tension for both foreign litigants in U.S. courts, and for the courts themselves. Foreign litigants necessarily face a quandary from which they seemingly cannot escape unharmed, i.e., either abide by the blocking statute and face the consequences in the U.S. proceeding, or violate the blocking statute and face the consequences at home. The case law shows that these threats are real. Litigants face sanctions in U.S. courts if they object to discovery on the basis of the French blocking statute. Additionally, a 2007 decision by the French Cour de cassation shows that the threat of prosecution for violating the French blocking statute is not an empty one.⁵

The tension for U.S. courts is one between the principles of lex fori and of international comity.⁶ The first of these principles holds that a court controls its procedure, whereas the second holds that a court should not give reason to violate the laws of another nation.⁷ The case law shows that the principle of lex fori more than often carries the day when litigants invoke the French blocking statute as a defense against requests for discovery of information located in France.

This memorandum offers an overview of all recorded cases in U.S. courts where parties invoke the French blocking statute, or the Hague Convention (as it applies to France), or both.⁸ Its goal is to familiarize future litigants with the issues that typically arise in these cases, to summarize the most important court rulings, and to help these litigants prepare their arguments effectively. 

To read the full article, click on the PDF linked below. 

PDF - The French blocking statute, the Hague Evidence Convention, and the case law: lessons for French parties

An earlier version of this paper appears on Law.com's Corporate Counsel Practice Updates on March 1, 2010 (Subscription may be required).
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¹ See generally Stephen N. Subrin, Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules, 39 B.C.L. Rev. 747 (1998).
² See, e.g., In re Perrier Bottled Water Litig., 138 F.R.D. 348, 355 (D. Conn. 1991).
³ For the French blocking statute, see the Loi (law) no. 68-678, modified by the Loi no. 80-538; discussed in Section II of this memorandum.
⁴ Formally known as the Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (the “Hague Convention”); discussed in Section III of this memorandum.
⁵ In re Christopher X, Cour de Cassation [Cass. Crim.], Paris, Dec. 12, 2007, Juris-Data No. 2007-83228 (Fr.); discussed in Section V of this memorandum.  The Cour de cassation is France’s court of highest appeal.
⁶ Note, Foreign Nondisclosure Laws and Domestic Discovery Orders in Antitrust Litigation, 88 Yale L.J. 612, 614 (1978−79).
⁷ Id.  See, e.g., In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., No. 05-MD-1720 (JG) (JO), 2010 WL 342051, at ** 2–3, 12 (E.D.N.Y. Aug. 27, 2010) (granting “some degree of deference [to the European Commission] under the rubric of international comity,” and shielding from U.S. discovery confidential documents generated in the course of the Commission’s own antitrust investigations”) (applying the Restatement (Third) of Foreign Relations Law of the United States § 442(1)(c) test, discussed below.).
⁸ There are twenty five such cases, as summarized in Table 1.  Whenever possible, arguments in this memorandum are made with cases that involve parties invoking French law.  However, several “non-French” cases are discussed when they make an important point of law and no equivalent case exists wherein French law is invoked.