Exterro's E-Discovery & Privacy Breakdown

The world of E-Discovery & Privacy is constantly changing – let us break it down for you with a weekly dose of News, Resources, Case Law, and Humor, all written in a concise and easy to understand format.

< BACK TO ALL STORIES

Case Law Alert: When a Cross-Border Discovery Letter Can Be Recommended

Created on July 1, 2022


Vice President, E-Discovery

As our world becomes more globalized, litigation with discovery requests for information outside the borders of the United States will become more and more common. Read about Champion v. Feld Entertainment to decipher when such a request may be granted by a domestic court.

Overview

In this action between a motorcycle race participant and the race organizer, both parties requested that the court issue a letter of request for discovery from a third party located in Switzerland.

The parties claimed that the third party “is in the possession of records relevant to [plaintiffs'] claims” and defendants “assert that these documents will bear on plaintiff's claims of physical injury and property damage, and defendants' defenses to those claims.”

To request this evidence from a party located in a foreign country, specifically Switzerland, the Hague Convention, "prescribes certain procedures by which a judicial authority in one contracting state may request evidence located in another contracting state."

Ruling

  • Court Grants Parties Request. The court ruled that by weighing the Aerospatiale factors, the letter for request of discovery from the third party was warranted. The evidence requested was relevant, the request was specific, and the parties had exhausted other means of discovery.
  • Balancing of Aerospatiale Factors. Coming to this decision, the court analyzed the following factors below and stated that the factors “weigh in favor of issuing the Evidence Request:”
    • The importance of the information requested to the litigation
    • Whether the request is sufficiently specific
    • Whether the information originated in the United States
    • Whether the evidence was available from another source
    • How the issuing or receiving nations' interests will be affected
  • Other Factors. The court went on to analyze whether the requested discovery fell within any of Switzerland’s reservations to the Hague Convention, which it didn’t, and the document request did fall within the scope of discovery under FRCP 26.


Expert Analysis from Hon. Andrew Peck (Ret.), Senior Counsel, DLA Piper

Getting evidence from abroad requires careful attention to the foreign country’s law and how it impacts the Aerospatiale analysis. (The GDPR, not applicable to Switzerland, makes obtaining information from EU countries particularly difficult.)The most important lessons from this decision are: (1) if the parties agree on the procedure, the Court is more likely to approve, and (2) requests should be carefully limited and requests for “all documents” should be avoided (especially where “documents sufficient to show” will suffice).

Case Law Tip

Have questions on how the FRCP applies to e-discovery? Download this FRCP E-Discovery Quick Guide to get all your questions answered.