The Authors
Benjamin DanielsRobinson+Cole
Benjamin Daniels advises financial institutions and global corporations about litigation and dispute resolution. As a member of the Business Litigation Group, Ben provides creative and ardent advocacy during litigation, enforcement actions, investigations, crisis management, and white-collar defense matters.
Ben’s clients often face complex, cross-border disputes. He has deep experience with the interplay between domestic and international courts, including discovery disputes and Hague convention proceedings. He also represents clients in international arbitrations and mediations.
Jenna ScovilleRobinson+Cole
Jenna Scoville is a member of the firm’s Business Litigation Group. She focuses her practice on all aspects of general business litigation and dispute resolution, as well as government enforcement matters, and appellate work. She helps companies respond to a variety of business disputes, including claims for breach of contract, unfair trade practices and fraud.
Jenna also has extensive appellate experience. Prior to joining the firm, she clerked for the Honorable Peter W. Hall of the U.S. Court of Appeals for the Second Circuit.
Emerging Litigation PodcastProduced by HB Litigation and Law Street Media
Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.
International Discovery Tool Kit Aims to Facilitate Discovery in Both Domestic and Foreign Litigation
“At a time when litigants have increasingly relied on U.S. federal courts to obtain otherwise unobtainable evidence from entities located within the United States, the U.S. Supreme Court has decisively closed the door to U.S.-style discovery in private arbitrations abroad. That means U.S. companies will no longer face the time, exposure, and expense of U.S.-style discovery that § 1782 had injected into those proceedings.“
Abstract: Business knows no borders. Every year companies increase their global reach and open new offices both domestically and abroad. The COVID-19 pandemic accelerated this process—remote employees spread documents and witnesses from Chicago to Shanghai to Sumatra. This has made litigation—especially discovery—more complex. Navigating this environment requires a tool kit of resources to secure discovery in support of both domestic and foreign litigation. This article discusses those tools and several traps for the unwary practitioner facing cross-border discovery to anticipate to effectively use those tools to their benefit.
When evaluating whether to allow a party to use the Hague Evidence Convention, courts consider several factors, including:
1) the importance of the documents or information to the case,
2) the specificity of the request,
3) whether the information originated in the United States,
4) the availability of other ways to secure the information, and
5) whether compliance with the request would undermine important interests of the United States or the foreign country.
