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An article published in the Winter 2016 edition of Judicature provided an overview of case law and approaches for handling cross-border discovery in litigation. Since then, there have been some notable developments in several important case decisions and legislation that United States practitioners seeking overseas discovery, and judges ruling on these issues, must keep in mind.
Section I of this article addresses the recent "Vitamin C" Supreme Court decision that establishes a new standard for the application of Federal Rule of Civil Procedure 44.1, entitled "Determining Foreign Law." Section II addresses the Clarifying Lawful Overseas Use of Data (CLOUD) Act, a new statute establishing a process through which countries can work together in criminal investigations to access data from global sources. Section III addresses recent case reliance on the Restatement (Third) of Foreign Relations Law. Section IV addresses the impact of the General Data Protection Regulation (GDPR) on overseas discovery in U.S.-based litigation. Section V reviews the work product of three independent legal groups that provide helpful guidance: The Sedona Conference, the Federal Judicial Center, and the Electronic Discovery Reference Model (EDRM).
I.THE "VITAMIN C" UNITED STATES SUPREME COURT DECISION
In Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co.1 (colloquially referred to as the Vitamin C decision because vitamin C was the subject matter of the case), the Supreme Court, for the first time, articulated a test that district courts must use in the application of Rule 44.1, dealing with choice of foreign law.
In Vitamin C, Chinese manufacturers and exporters of vitamin C were accused of violating Section 1 of the Sherman Antitrust Act.2 In the district court proceeding, defendants filed a motion to dismiss, arguing that the Chinese government required them to fix the price and quantity of exports pursuant to Chinese law, protecting them from liability under the Sherman Act.3 The district court denied the motion, relying on plaintiffs' evidence casting doubt upon a statement from the Ministry of Commerce of China.4 The Second Circuit, finding that the district court erred in denying the motion, articulated a test that was highly deferential to the foreign interest.s Justice Ruth Bader Ginsberg, writing for a unanimous Supreme Court, vacated the Second Circuit's decision and relied on the principles of international comity, articulated in...