INTRODUCTION

In the previous chapters, I noted that US district courts are notorious for their cross-border discovery orders. Moreover, I showed that these US courts may also order a foreign litigant to disclose documents that have to remain confidential according to foreign law. As such, it does not come as a surprise that several continental European states – such as France and Germany – have questioned the legality of the US courts’ injunctions in light of the international legal principle of state sovereignty, especially when the addressee was domiciled within their state. Accordingly, in reaction to the US cross-border discovery practice, several states have argued that courts must use the Evidence Convention instead, in the event that the evidence needs to be taken from a litigant who is domiciled within another Contracting State.

Apart from the fact that this argument does not hold, it is interesting to see that the courts of some of these Continental European states have granted orders that are somewhat similar to the aforementioned US cross-border discovery orders. Th is can be clearly seen, for instance, in the following judgment of the French Supreme Court (Cour de cassation):