Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. We address here the corollary to the questions addressed in Chapter 14 concerning how U.S. proceedings can be used to aid discovery or disclosure of documents and testimony in aid of litigations pending in non-U.S. jurisdictions. Here, we address the legal issues and practice points relating to obtaining material — evidence or other information — from non-U.S. persons or jurisdictions for purposes of litigating in the U.S.
  2. Whenever litigation in the U.S. involves information or evidence located abroad or in the hands of non-U.S. entities, the lawyer must take account of non-U.S. rules, procedures, and laws in planning and carrying out discovery. Specifics follow, but a general point is that issues of judicial sovereignty, comity, and international relations require U.S. courts and U.S. litigants to adjust their pretrial strategy and to understand that discovery of material abroad will typically take longer and yield less than if the information or material were located in the U. S. When non-U.S. jurisdictions hold the bulk of potential evidence, a plaintiff expecting to build its case, or a defendant searching for a defense, may end up delayed, stymied, or wholly frustrated by the inability to obtain the necessary evidence to support its case.
  3. We discuss below the most important issues to be aware of when planning discovery of material abroad, including the international treaty that facilitates and governs discovery in many non-U.S. jurisdictions as well as methods and procedures that may apply in cases in which the treaty is inapplicable. We also suggest ways of thinking about and organizing discovery of material abroad in ways that may help to reduce the complexity and burden. Finally, we point out how discovery of material abroad may be limited by privacy regulations that may restrict the transfer of information from non-U.S. jurisdictions in connection with U.S. proceedings.

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