Philip M. Berkowitz
Cross-border discovery is not a new phenomenon. Nor is the conflict that exists between broad U.S. discovery principles, on the one hand, and far more limiting laws of foreign countries, on the other.
The issue, though, takes on new significance with the U.S. Supreme Court’s acceptance of certiorari last month in Microsoft v. United States, where the Second Circuit quashed a search warrant seeking production of emails located on Microsoft’s digital server in Ireland. In re Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft, 829 F.3d 197 (2d Cir. 2016), rehearing en banc denied, 855 F.3d 53 (2d Cir. 2017), cert. granted, 2017 WL 2869958 (U.S. Oct. 16, 2017).
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