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Extraterritorial Discovery Disputes: Do Foreign Litigants Stand a Chance?
Say you defend a British corporation that is subject to the laws of England and Wales against a U.S. plaintiff who is suing your client for the negligent design and manufacture of a vehicle that resulted in the death of her child. The plaintiff's claim alleges that your client was aware of the risks associated with the design of the vehicle and knew that safer alternative designs were available. Because of cost concerns, however, your client knowingly and intentionally decided to forego the added safety features and implement the cheaper alternative.
During discovery, the plaintiff serves a set of interrogatories and document requests pursuant to the Federal Rules of Civil Procedure (“FRCP”), asking your client to disclose the names and contact information of all current and former employees who were involved in the testing of the vehicle at issue, as well as those individuals who were responsible for choosing that vehicle's particular design. Clearly, under the Federal Rules' broad discovery guidelines, the plaintiff is entitled to this information. Under British law, however, employers are prohibited from disclosing personal information of former employees without their consent. Consequently, your client cannot fully comply with the plaintiff's discovery requests without subjecting itself to civil suits at home. As a result, your client refuses to disclose the information, and the plaintiff files a motion to compel. Does your client stand a chance of prevailing, or is the court going to order production?
The Supreme Court's Position Regarding Extraterritorial Discovery Conflicts
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