Cross-Border Discovery and the Hague Convention
U.S. broad-discovery rules collide with foreign laws like the GDPR that protect personal data. Courts split on how to resolve the conflict; the Hague Evidence Convention offers an alternative, and Aerospatiale sets balancing factors - the most important being the competing national interests at stake.
U.S. discovery rules require disclosure of relevant information in a party's possession, custody, or control - extending globally - while foreign laws such as the GDPR treat privacy as a fundamental right and may bar transfer or disclosure. U.S. courts take different approaches: some require production only by the party that invoked U.S. jurisdiction; others extend it even to parties that did not; the U.S. Supreme Court has said foreign statutes do not deprive an American court of power to order production. Some courts require a Privacy log.
The Hague Convention on the Taking of Evidence can displace the Federal Rules, but the party invoking it bears the burden of showing it is more appropriate and that foreign law prohibits the discovery (often via expert testimony). It is far more expensive and time-consuming - typically a last resort.
- Importance of the documents/data to the litigation
- Specificity of the request
- Whether the information originated in the United States
- Availability of alternative means of securing the information
- Extent to which U.S. and foreign national interests would be undermined (often called the MOST important factor)
For producing transborder data: encrypt and send the key by a separate secure method; if shipping physical media, preserve an audit trail; or use a secure connection like SFTP. Plan to identify, redact, protect under order, and "claw back" inadvertent disclosures.