U.S. Courts Teach Europe the True Meaning of Christmas

Litigation slows around the holidays as all of us, men and women, associate and partner, plaintiff and defendant, join together in the spirit of the season and take some time to remind ourselves why there are some cousins we just don't keep in touch with. But before we bid good riddance to those interminable weeks of peace on earth and good will toward men and look forward to the comfort of acrimonious discovery disputes ahead, let us take a moment to reflect one last time on the true meaning of Christmas, as perhaps first taught us by the U.S. Supreme Court in Societe Nationale Industrielle Aerospatiale v. United States Dist. Ct. for the Southern Dist. of Iowa, 482 U.S. 522 (1987):

It is better to give than to receive sanctions for violating a U.S. discovery order.

This is a universal message, as explained by Peter Selvin and Jed Lowenthal here. Just as Santa may distribute coal to naughty children without regard for the governing statutes of those children's home jurisdictions (many of which contain strict emissions standards which exclude coal from the list of acceptable gift fuels), U.S. courts may distribute sanctions for violations of discovery orders regardless of whether the non-U.S. parties' compliance with those orders would expose the parties to civil or even criminal sanctions in their home jurisdictions. In fact, as Mssrs. Selvin and Lowenthal note, one may not even need to be a party to the litigation to be subject to a discovery order; foreign affiliates of U.S. litigants may be fair game, too, if the court determines that the litigant has control over the information held by the affiliate.

So, if you are a non-U.S. party and are ordered to disclose your discoverable electronically stored information, you will likely be obliged to give that information up. Even if the information is stored on servers in Europe. Even if you aren't a party to the litigation. Even if disclosure would expose you to sanctions back home. Even if you really, really don't want to.

But take heart, non-U.S. readers; things could be worse. For example, this post was only inches away from being titled "U.S. Courts Crash European 'Block' Parties."

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