Law360 Guest Article: Expect Foreign Privacy Law Defense to US Discovery to Fail


The Delaware Court of Chancery recently rejected a party’s attempt to object to the production of documents located in France on basis of the French Data Protection Act (“FDPA”). In re Activision Blizzard Inc. Stockholder Litig., C.A. No. 8885-VCL, --- A.3d ---, (Del. Ch. Feb. 21, 2014) (Laster, Vice Chancellor).

The FDPA defines “personal data” broadly and sanctions violators with hefty fines and incarceration. The court held that compliance with the FDPA could be achieved through a confidentiality order “of the type customarily used” in the Court of Chancery. In re Activision is a shareholder action against Activision, a Delaware corporation, its controlling stockholder, Vivendi SA, and the Vivendi-appointed French directors of Activision.

Separately, and in response to the French defendants’ (“Vivendi”) classic French blocking statute (“FBS”) defense, the court gave Vivendi little more than five weeks to obtain consent from French authorities and produce the requested documents. Failing that, Vivendi is to produce the documents anyway or face sanctions (citing Restatement (Third) of Foreign Relations Law § 442, hereinafter the “restatement”).

Excerpted from Law360, March 7, 2014. To read the full article, click on the PDF linked below.

Expect Foreign Privacy Law Defense to US Discovery to Fail.pdf

Please click the below PDF for the full article with citations.

French Data Privacy Act Defense Fails in Delaware Court of Chancery.pdf

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