With workforce globalization and modern data management practices, it is increasingly likely that U.S. litigants will face demands for discovery of evidence from data sources such as electronic records and documents that reside outside of the United States. However, a party producing documents in response to U.S.-issued discovery demands risks violating foreign laws that prevent this discovery.
These laws may include general “blocking statutes”, like those found in France and Switzerland, which were designed specifically to restrict or prohibit cross-border data transfers and U.S.-style discovery practices. Other sector-specific laws, such as banking secrecy statutes and health care and telecom laws, and data protection laws such at the EU’s General Data Protection Regulation (GDPR), may also restrict a party’s ability to transfer data and disclose it in the United States. Where this circumstance occurs, a responding party must find ways to balance its competing legal obligations to produce for discovery on one hand, but to decline to produce on the other.
