New York Law Journal
December 8, 2014
What could be worse for a litigant than being ordered by a court in one country to violate the law in another country? This strange scenario has become surprisingly common within the Second Circuit over the past decade. With growing frequency, courts are ordering litigants and even non-parties to produce documents in U.S. discovery in violation of the law of the countries where the documents are held.
For example, courts in this circuit have:
- Ordered a foreign government to produce a confidential file that included the government’s criminal investigation in violation of the government’s criminal law stating that the “records of a criminal investigation shall be confidential until the commencement of the trial”;
- Ordered banks to produce the personal financial records of broad swaths of individuals in violation of laws protecting individual privacy and the confidentiality of private financial records; and
- Ordered lawyers to produce documents in violation of the foreign nation’s constitution and a court injunction prohibiting the production of those documents as violating attorney-client trust and communications.
In each of these cases, the courts conducted a balancing test and concluded that the U.S. need for these documents in discovery was so great as to justify ordering their production in violation of foreign law.
Court-ordered violations of foreign law have exploded in frequency. Over the past 10 years, there have been more than 20 times as many decisions ordering document productions that violate foreign law as there were in the previous decade. As discussed below, this strange trend of court-ordered law-breaking seems to be driven by U.S. trial courts themselves.
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