International Parties Beware: You Can’t Always Hide Behind Countries’ Blocking Statutes to Escape Production of Documents in US Courts

International Parties Beware: You Can’t Always Hide Behind Countries’ Blocking Statutes to Escape Production of Documents in US Courts

Foreign nations seek to protect parties within their borders in international litigation by enacting “blocking statutes.” These statutes protect a party from having to produce documents or information to be used as evidence in foreign judicial or administrative proceedings. Failure to comply with the blocking statute can subject the foreign party to criminal sanctions.

What do these statutes mean for American parties seeking to obtain documents or information through discovery? An outcome to be avoided: further delay of the discovery process.

The French blocking statute at issue in In re Air Cargo Shipping Services Antitrust Litigation protected French parties from the production of documents or information in foreign proceedings unless the request was made pursuant to the Hague Convention or other treaties. In this case, which was already into its fourth year at the time of the district court’s opinion, and other cases still in discovery after years have elapsed, further delay could prove very costly.

In In re Air Cargo Shipping Services, the plaintiffs moved to compel the defendant Air France to produce five boxes of documents that it withheld on grounds that the

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French blocking statute prohibited production. Air France argued that production of the documents constituted a violation of the blocking statute that could subject it to criminal sanctions.

Luckily, the United States Supreme Court provided guidance on this issue in Société Nationale Industrielle Aérospatiale v.

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U.S. District Court for the Southern District

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of Iowa. The Court held that international parties properly before US courts could be required to produce documents during discovery, despite the risk of sanctions due to violations of the blocking statutes. Avoiding a conclusion that US discovery rules always reign supreme over the blocking statutes, the Court guided federal courts to apply a case-by-case approach to determine whether the Hague Convention should be used to obtain evidence.

To determine whether to issue an order compelling the production of the documents held by Air France, the district court applied the following factors from the Restatement (Third) of the Foreign Relations Law of the United States to the facts:

1) The importance to the investigation or litigation of the documents or information requested.

Air France conceded that the documents fell within the scope of relevant discovery. Furthermore, the Department of Justice (“DOJ”) previously obtained the documents through its criminal antitrust investigation into the same activities that formed the basis of the civil antitrust claims before the court. Thus, there was a “substantial likelihood” that the documents would be important for pursuing the civil claims.

2) The degree of specificity of the request.

The request precisely identified the documents that the plaintiffs sought to obtain.

3) Whether the information originated in the United States.

It was clear that the information originated in France, otherwise the blocking statute would not have applied.

4) The availability of alternative means of securing the information.

The outcome of a request pursuant to the Hague Convention was uncertain and would have caused a delay of unknown duration. As a result, it may not have been an effective method for securing the documents.

5) The extent to which noncompliance with the request would undermine important interests of the United States or compliance with the request would undermine important interests of the state where the information is located.

The enforcement of antitrust laws, which had been violated, was crucial to the US economy. The US had a substantial interest in the full and fair adjudication of matters before its courts, which can only be accomplished by allowing parties access to relevant discovery. France’s sovereign interest in controlling access to information within its borders had already been undermined by the disclosure to the DOJ.

6) The hardship of compliance on the party from whom discovery is sought.

Other courts determined that the French blocking statute did not subject defendants to a realistic chance of prosecution. Instead, the statute was intended to protect French businesses from excessive discovery in foreign litigation. Moreover, the documents had already been disclosed to the DOJ in the criminal proceeding.

7) The good faith of the party resisting discovery.

There was little evidence to demonstrate Air France acted without good faith by invoking the blocking statute.

The court then concluded that the interests weighed in favor of the plaintiffs for an order compelling production. A request through the Hague Convention would only cause further delay.

Parties on both sides of foreign litigation, listen closely for the lessons to be learned:

Foreign parties: Don’t rely on your countries’ blocking statutes as absolute shields from the production of information in discovery. The risk of sanctions will not exempt you from production.

American parties: Blocking statutes’ teeth are not as sharp as they appear. Exercise your rights to seek an order compelling production. The court will grant it if the interests weigh in your favor.


Suzanne Janusz will receive her J.D. from Seton Hall University School of Law in 2012. She received her B.A. from Rutgers University, New Brunswick, summa cum laude in 2008. She currently serves as the Managing Editor for the Seton Hall Journal of Sports and Entertainment Law.

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