Obtaining Discovery Abroad: The Utility of the Comity Analysis in Determining Whether to Order Production of Documents Protected by Foreign Blocking Statutes

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I. INTRODUCTION

The global economy is now a reality. With the increasing globalization and diversification of commerce and human interaction comes a concomitant globalization and diversification of legal proceedings. In this age of growing international economic interaction, discovery driven document production often involves corporations with offices overseas. Because of resistance to American style discovery in some foreign jurisdictions, attempts to obtain information essential to litigation are sometimes frustrated by foreign blocking statutes.(1) Blocking statutes, laws of foreign countries that impose criminal penalties upon parties within their jurisdiction who disclose specified documents, are so named because of their effect upon American style discovery.(2) The tension created by these statutes has led commentators to assert that no aspect of extending the U.S. legal system abroad has given rise to more friction than discovery of materials associated with investigation and litigation in the United States.(3)

Balancing the need for production of vital information with the possibility that its discovery orders will lead to criminal liability for the producing party, a U.S. court must determine whether to grant a motion compelling production.(4) Further, if the motion to compel production is not complied with, the court must decide whether to impose sanctions through Rule 37 of the Federal Rules of Civil Procedure.(5)

Gaining compliance with a production order can mean the difference between winning or losing a multi-million dollar verdict for one's client.(6) Partly because the stakes are so high, courts have had trouble agreeing on a uniform standard.(7) In Societe Internationale, the Supreme Court affirmed a district court's power to order a party to produce documents kept in a foreign country despite the fact that such production may subject the party to criminal sanctions in the foreign country.(8) Following this decision, courts have differed in their assessment of which factors to use in arriving at the decision to compel production.(9) Because issues of national sovereignty and respect for duly enacted legislation of foreign countries arise whenever U.S. courts attempt to compel discovery in foreign jurisdictions, it behooves U.S. courts to arrive at a consistent comity analysis when determining under what circumstances to compel.(10) This Comment suggests a consistent comity analysis to be applied to the determination of whether to compel production of documents when illegality is raised as an excuse. By so doing, this analysis addresses a significant question left open ever since the Societe Internationale decision in 1958.(11)

II. FOREIGN BLOCKING STATUTES

The foundational principles upon which civil law countries have developed render them ill suited for the American style discovery assault.(12) There, the discovery process is shepherded by the judge, who alone has power to investigate facts.(13) The civil law tradition rejects the idea that such a vital function should be placed within the purview of the parties themselves.(14)

Given this predisposition in some foreign forums, it should not be surprising that American style discovery is met with a less than enthusiastic reception abroad.(15) Even where the forum shares the U.S. adversarial judicial system, the natural instinct to protect one's own interests produces antipathy in some nations toward U.S. antitrust and securities regulations.(16) This antipathy is sometimes expressed in the form of legislation aimed at thwarting the efforts of U.S. courts to pursue their jurisdictional privileges through discovery in foreign forums.(17) Accordingly, the taking of otherwise available evidence may be impossible if that evidence is subject to the reach of a foreign blocking statute.(18)

III. THE ROLE OF THE HAGUE EVIDENCE CONVENTION

A. General Provisions

Before addressing the issue of whether to order production of documents subject to a foreign blocking statute, a U.S. court must first determine whether to proceed with discovery under the Federal Rules of Civil Procedure or the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention).(19) The Hague Convention is a multilateral agreement that prescribes procedures by which litigants involved in civil and commercial matters may obtain evidence abroad.(20) It was initially adopted in October 1968 to provide a uniform system for the transmission and execution of requests for gathering evidence in foreign jurisdictions.(21) There are now forty signatories to the Hague Convention, including most major Western trading nations.(22) Because of widely perceived difficulties with existing methods of transnational discovery, the United States became a signatory to the Hague Convention in 1972.(23)

A primary objective of the Hague Convention was to provide an effective method for taking evidence abroad.(24) A particular concern was ensuring that the taking of evidence on foreign soil would be consistent with the laws of that country, while nevertheless providing useful results for the litigants involved.(25) Therefore, the Hague Convention's drafters were scrupulous to include local judicial or government officials in most evidence gathering functions allowed under the Convention's terms.(26) The practical result of this operational philosophy is that U.S. litigants are usually able to obtain only the discovery which litigants in the country where the documents are located would be able to obtain.(27)

The main means of evidence gathering under the Hague Convention is through the Letter of Request procedure.(28) Under article 2 of the Hague Convention, all signatory states are required to establish "Central Authorities" comprised of governmental agencies responsible for receiving incoming Letters of Request from other signatory nations and overseeing their execution.(29) Thus, the process begins when a litigant in a signatory state requests the domestic court where his action is pending to issue a Letter of Request seeking production of specified documents or the taking of testimony from a particular witness.(30) The designated Central Authority in the country where the evidence is located receives the Letter of Request and transmits it to the court in the jurisdiction where the evidence is located.(31) The foreign court then conducts an evidentiary proceeding and transmits the results directly back to the court that first issued the Letter of Request.(32)

Signatory nations are required to cooperate in executing the Letters of Request from other signatory nations.(33) However, Article 23 provides an often-utilized limitation to this requirement for countries opposed to American style discovery.(34) Member states may declare that they "will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries."(35) Of the forty nations that are signatories to the Hague Convention, only the United States, Czechoslovakia, Barbados, and Israel have not limited pre-trial discovery through some type of Article 23 preclusion.(36) It is this significant limitation that has provoked much of the resistance to the Convention's use in the United States.(37)

B. The U.S. Supreme Court's Aerospatiale Decision

The Hague Convention is the subject of frequent litigation in the United States.(38) The principle issue litigants face is determining what role the Hague Convention will play when a U.S. court has jurisdiction over a foreign party and discovery is sought abroad from that party in a pending U.S. suit.(39) Before the Supreme Court's Aerospatiale decision, lower courts had reached a variety of different conclusions regarding the role of the Hague Convention.(40) One court suggested that the Convention was the exclusive means of obtaining discovery from a signatory nation.(41) Other courts adopted a rule that the Convention should be used as a first recourse before resorting to discovery under the Federal Rules of Civil Procedure if the Convention's procedures proved to be ineffective.(42) Some courts have held that the Hague Convention's procedures were not appropriate when the country producing the discovery had to transmit it to the United States rather than to foreign soil.(43)

In Aerospatiale, the Court held that the Hague Convention was not the exclusive means of discovering evidence located in a signatory state.(44) Although district courts are free to use U.S. discovery methods, the Supreme Court has observed:

   American courts, in supervising pretrial proceedings, should exercise
   special vigilance to protect foreign litigants from the danger that
   unnecessary, or unduly burdensome, discovery may place them in a
   disadvantageous position. Judicial supervision of discovery should always
   seek to minimize its costs and inconvenience and to prevent improper uses
   of discovery requests. When it is necessary to seek evidence abroad,
   however, the district court must supervise pretrial proceedings
   particularly closely to prevent discovery abuses. For example, the
   additional cost of transportation of documents or witnesses to or from
   foreign locations may increase the danger that discovery may be sought for
   the improper purpose of motivating settlement, rather than finding relevant
   and probative evidence. Objections to "abusive" discovery that foreign
   litigants advance should therefore receive the most careful consideration.
   In addition, we have long recognized the demands of comity in suits
   involving foreign states, either as parties or as sovereigns with a
   coordinate interest in the litigation. American courts should therefore
   take care to demonstrate due respect for any special problem confronted by
   the foreign litigant on account of its nationality or the location of its
   operations, and for any sovereign interest expressed by a foreign state. We
   do not articulate specific rules to guide this delicate task of
   adjudication.(45)

In the same way that the Supreme Court rejected the notion that the Hague Convention was the sole method by which U.S. courts could obtain discovery abroad, it also cautioned courts from running roughshod over the jurisprudential system of the foreign sovereign.(46) According to the Court, the circumstances in which the Convention procedures must be used depend upon the principle of international comity, which the Court defined as "the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states."(47)

IV. THE IMPORTANCE OF INTERNATIONAL COMITY

A. Comity's Significance

United States judicial policy has traditionally been supportive of the notion of comity, presuming its applicability and its necessity to the functioning of the international legal system.(48) The D.C. Circuit has described the essential nature of this principle as "the mortar which cements together a brick house."(49) Also, the Supreme Court has noted:

   "Comity," in the legal sense, is neither a matter of absolute obligation,
   on the one hand, nor of mere courtesy and good will, upon the other. But it
   is the recognition which one nation allows within its territory to the
   legislative, executive or judicial acts of another nation, having due
   regard both to international duty and convenience, and to the rights of its
   own citizens or of other persons who are under the protection of its
   laws.(50)

The doctrine of comity is necessarily implicated whenever international commercial disputes arise.(51) However, although United States and foreign courts stress the importance of adhering to this doctrine with vigor, they are deficient at applying comity with any consistency.(52) The inherent difficulty in following such an amorphous, voluntary policy of noninterference with other sovereign forums lies in its essential character as a balancing act of politics, courtesy, and good faith between nations.(53) In order to facilitate the resolution of international discovery disputes that impede U.S. litigation, U.S. courts should adopt a consistent means of comity analysis. A critical question that must be answered is whether the behavior of the party resisting discovery should be analyzed as a part of the decision to compel production, or whether this analysis is better deferred until consideration of sanctions for disobeying the court's order to compel.(54)

B. Early U.S. Attempts at Comity in the Context of International Antitrust Litigation

Litigation in the United States operates on the premise that wide-open discovery, like freedom of speech, is an essential aspect of finding truth.(55) This is especially the case in increasingly complicated commercial suits in which discovery is absolutely essential to adequate fact finding.(56) In a world with perfect comity between sovereign states, there would be no difficulty when documents vital to a plaintiffs case happened to be housed in a multinational corporation's foreign office. So long as the U.S. court possessed personal jurisdiction over the defendant, the court could force that party to produce materials under the party's control, wherever those materials were located.(57)

This rather rosy scenario is complicated greatly by the antipathy some foreign jurisdictions have for American style discovery.(58) The U.S. Supreme Court has spoken only once on the standard that U.S. courts should apply when faced with the excuse of foreign illegality for nonproduction, and its voice was somewhat faltering.(59)

1. Societe Internationale v. Rogers (1958)

In Societe Internationale v. Rogers, a Swiss holding company brought suit under the Trading with the Enemy Act to recover assets that the U.S. government had seized during World War II.(60) Early in the litigation the government moved under Rule 34 of the Federal Rules of Civil Procedure for an order requiring the holding company to produce documents held by its bank in Switzerland.(61) The plaintiff sought relief from production on the ground that disclosure of the required bank records would violate Swiss penal laws on bank secrecy and subject those responsible for disclosure to criminal sanctions.(62) When the plaintiff failed to comply with the awarded production order, the district court dismissed the plaintiffs case, holding that the plaintiff had control over the bank records, that the records might prove a deciding factor in the suit and that Swiss law did not provide an adequate excuse for noncompliance.(63)

The Supreme Court affirmed the issuance of the production order, but reversed the dismissal of the action.(64) The Court utilized three factors that influenced its decision and have since become the backbone of current analysis of the suitability of production orders for foreign evidence.(65) First, a court should consider and facilitate the strength of the American interests underlying the statute that gives rise to the cause of action.(66) Second, a court should replace the normal discovery standard of being "reasonably calculated to lead to the discovery of admissible evidence"(67) with a higher standard that inquires into whether the requested documents are crucial to the resolution of a key issue in the litigation.(68) Third, the Court indicated that a party's good faith attempt to timely comply with a production order, to obtain a waiver, or otherwise to achieve compliance, is important when determining whether sanctions are appropriate for nonproduction.(69)

If the Societe Internationale opinion had stopped at that, then lower courts would have had a consistent analysis to apply to later comity concerns when determining whether to compel production in the face of a foreign blocking statute. Unfortunately, the Societe Internationale Court went on to explicitly limit its ruling to the instant case, limiting the precedential value of its three-pronged analytical framework.(70) The Court also indicated that the propriety of issuing a production order should depend not only upon the factors it identified, but also upon "the exigencies of the particular litigation" and "the circumstances of the given case."(71) This open ended analysis left lower courts to speculate broadly regarding the correct comity analysis to apply when determining whether to order production of documents subject to a foreign blocking statute.(72)

Furthermore, the Supreme Court's acknowledgment that "the fear of criminal prosecution constitutes a weighty excuse for nonproduction"(73) has served in the years since Societe Internationale to foster a climate in which foreign governments are encouraged to provide cover for their country's corporations by enacting nondisclosure statutes.(74) If foreign governments are persuaded that U.S. courts will not compel discovery when production will subject a party to criminal penalties abroad, then those governments will be likely to exploit their advantage and pursue such legislation vigorously.(75) This phenomenon accounts for the growth of nondisclosure statutes abroad in the years since the Societe Internationale decision.(76)

There is a strong incentive for multinational corporations to collude with foreign governments in secreting documents beyond the reach of U.S. courts.(77) The nonproducing party is able to raise the issue of foreign illegality as an excuse when arguing that the court should not grant her opponent's motion to compel production.(78) If the court should go ahead and issue the order compelling production, the nonproducing party may still be unable--or simply unwilling--to comply. In that case the nonproducing party may attempt to avoid Rule 37 sanctions on the grounds that foreign illegality made compliance impossible.(79) Courts have weighed the foreign illegality defense against the need for discovery of documents at both the order and sanctions phases of the litigation.(80) This encourages those seeking to create "information havens" abroad to exploit this advantage in thwarting, or at the least delaying, U.S. litigation.(81) Courts have proposed a number of approaches to both stages in the process, but those proposals still lack consistency regarding which standards to apply and at which stage to apply them.(82)

2. Early Second Circuit Decisions

One line of Second Circuit cases decided in the years immediately following the Supreme Court's decision in Societe International held that foreign law prohibitions on disclosure act as a bar to ordering production of documents.(83)

In Chase Manhattan a grand jury request for Chase Manhattan documents located in Panama was greeted by a Panamanian law, which made disclosure of the very documents sought by the court a criminal offense.(84) The Second Circuit Court capitulated, deferring to "fundamental principles of international comity" and refusing to order production.(85) Particularly striking was the fact that on January 30, 1961, the very day that Chase was ordered to show cause for why an already issued subpoena should not be modified to include documents Chase had secreted in Panama, the president of Panama signed Law No. 17.(86) The president and the legislature had hurriedly enacted the law the previous day.(87) The Second Circuit based its order denying the U.S. government's request for an order compelling production in part upon the Panamanian law. Citing an earlier decision, the court asserted that "if in fact production of branch records located in Panama `would require action by personnel in Panama in violation of laws of Panama ... production ... should not be ordered' by the courts of this country."(88) In ruling upon the government's assertion that compliance with production would not necessitate illegal action because the subpoena is directed only to the head of Chase's office in New York rather than to Panamanian personnel, the court replied, "[T]his would be nothing more than an attempt to circumvent the Panamanian law."(89) According to the court, "such a maneuver scarcely reflects the kind of respect which we should accord to the laws of a friendly foreign sovereign state."(90)

The precedent for the court's ruling in Chase Manhattan had been set in an earlier Second Circuit decision, Ings v. Ferguson.(91) In Ings, New York branches of a Canadian bank were allowed to secret documents necessary to establish the case against the Canadian bank.(92) The court based its reasoning upon the assertion that:

   An elementary principle of jurisdiction is that the processes of the courts
   of any sovereign state cannot cross international boundary lines and be
   enforced in a foreign country. Thus service of a United States District
   Court subpoena by a United States Marshal upon a Montreal branch of a
   Canadian bank would not be enforceable. However, amongst civilized nations,
   between which international comity exists, procedures have long been
   established whereby the requests of litigants in other countries seeking
   testimony and records are honored. Such reciprocity is evidenced by the
   laws which each of the sovereign states has enacted to enable this purpose
   to be achieved. Each state nevertheless by the very definition of
   sovereignty is entitled to declare its own national policy with respect to
   such limitations upon the production of records as its lawmakers may choose
   to enact.(93)

By allowing multinational corporations headquartered in the United States (like Chase Manhattan Bank) and outside the United States (like the Canadian bank in Ings) to exploit the opportunity to secret documents abroad, these early Second Circuit cases demonstrate the futility of attempting to adhere too scrupulously to a pure comity approach.(94) This extremely deferential, almost reverential, treatment of foreign blocking statutes provided incentive to foreign governments to expand the scope and number of laws imposing criminal sanctions upon those who disclose documents allegedly important to some specified national interest.(95) Another approach was needed that would not unjustly punish the party seeking production simply because the materials sought were conveniently located in a jurisdiction hostile to American style discovery, commercial interests, or both.(96)

3. The Tenth Circuit's Decision in Arthur Andersen

The Tenth Circuit adopted a somewhat different approach than did the Second Circuit when confronted with a defendant claiming the protection of Swiss secrecy laws as shelter from a discovery request.(97) The state of Ohio sued Arthur Andersen in the U.S. District Court for the Southern District of Ohio. At issue in Andersen was whether the district court usurped its power in entering discovery orders that required the accounting firm to produce certain documents, even though production of those documents would allegedly violate nondisclosure laws in Switzerland.(98) The Andersen court interpreted Societe Internationale to imply that consideration of foreign law in a discovery context is required only in determining whether sanctions should be imposed for disobeying an order to compel, not in deciding whether the discovery order should be issued in the first place.(99) The Andersen court refused to resort to overblown notions of comity in deciding whether to order document production, holding that foreign law cannot control local law and cannot invalidate an order which local law authorizes.(100)

The Tenth Circuit had an opportunity to solidify its holding in the first Andersen ruling when the accounting giant appealed the trial court's ruling imposing Rule 37.(101) The court cited the Supreme Court's Societe Internationale decision, distinguishing between "inability to comply and willful or bad faith noncompliance."(102) In light of Andersen's "dilatory response to [the trial court's] December 16, 1975 order,"(103) the Tenth Circuit ruled that the preclusionary and monetary sanctions imposed by the trial court were "just and authorized by the Rule."(104)

While the early Second Circuit decisions discussed above seemed to give undue deference to notions of international comity, the Tenth Circuit in its Andersen decisions disregarded comity considerations altogether.(105) Andersen v. Finesilver could even be regarded as dismissive toward the importance of comity considerations:

   We are not impressed by Andersen's contention that international comity
   prevents a domestic court from ordering action which violates foreign law.
   If the problem involves a breach of friendly relations between two nations,
   Andersen should call the matter to the attention of those officers and
   agencies of the United States charged with the conduct of foreign affairs,
   and they could make such representation to the court as they deemed
   suitable. Andersen has not taken this action. Instead, it purports to speak
   for the United States.(106)

Nevertheless, as other Tenth Circuit decisions reveal, there is an appropriate place for considerations of international comity by the courts.(107) Determining the appropriate place, and giving the appropriate weight to interests of comity, however, has proven to be a difficult task.(108)

C. The Middle Ground: Balancing Tests

A compromise has been struck in recent court decisions between the extremes of undue reverence for foreign blocking statutes and outright disregard for comity sensitivities.(109) While these recent decisions acknowledge that they must balance competing national interests in determining whether foreign illegality should preclude the issuance of a production order, no consensus has yet been reached as to the balancing test to be utilized.(110)

1. Minpeco v. Conticommodity Services

The Minpeco decision reflects the analysis of those courts that have developed a four-part test incorporating elements of Section 40 of the Restatement (Second) of the Foreign Relations Law with various elements of the Societe Internationale decision.(111)

In Minpeco, the plaintiffs in three related cases moved for an order compelling production of documents by defendant Banque Populaire Suisse (BPS).(112) Charged with violations of antitrust, racketeering, and securities laws, BPS opposed discovery, claiming the protection of Swiss banking secrecy laws.(113) Acknowledging BPS's argument that earlier Second Circuit decisions held that foreign law prohibitions on disclosure act as a bar to ordering production of documents, the Minpeco court nonetheless pointed to more recent decisions in which the Second Circuit had moved to a more flexible position.(114) The court then relied heavily upon the Restatement (Second) of the Foreign Relations Law to establish a balancing test incorporating both comity and good faith concerns.(115)

Without explaining why, the Minpeco court asserted that the Second Circuit has treated the first two Section 40 factors--the competing interests of the countries involved and the hardship imposed by compliance--as far more important than the last three.(116) The court then combined these two factors with two of the considerations identified by the Supreme Court in Societe Internationale.(117) The first consideration was the importance of the documents requested.(118) The second additional factor was the good or bad faith of the party resisting discovery.(119) To summarize, according to the Minpeco court, the principle factors to consider in deciding a motion to compel in the face of a foreign blocking statute are: (1) the competing interests of the nations whose laws are in conflict; (2) the hardship of compliance on the party or witness from whom discovery is sought; (3) the importance to the litigation of the information and documents requested; and (4) the good faith of the party resisting discovery.(120)

In the end, the Minpeco court crafted a hybrid balancing test that proved very demanding on the courts attempting to apply it.(121) Reflecting the Second Circuit's profound regard for international comity and good faith, the trial court in Minpeco made no distinction between applying this cumbersome test at the production stage of the litigation or at the sanctions stage, should that determination become necessary.(122) On the contrary, the Minpeco court asserted that the Second Circuit has applied concerns of good faith and comity both when determining whether production should go forward in the face of a foreign blocking statute and later when attempting to decide whether sanctions should be imposed for failing to comply with the court's production order.(123) This "doubling up" of comity and good faith analyses is both unfair and inefficient as it often leads to confusion and delay for all participants and a lack of remedy to the party seeking production.(124)

2. In re Uranium

A better line of reasoning is reflected in In re Uranium Antitrust Litigation, which adheres more closely to the original three-part comity analysis suggested by the Supreme Court in Societe Internationale.(125) In In re Uranium, the U.S. District Court for the Northern District of Illinois, described these three factors as follows:

   Societe teaches that the decision whether to [compel production of
   materials subject to a foreign blocking statute] is a discretionary one
   which is informed by three main factors: 1) the importance of the policies
   underlying the United States statute which forms the basis for the
   plaintiffs' claims; 2) the importance of the requested documents in
   illuminating key elements of the claims; and 3) the degree of flexibility
   in the foreign nation's application of its nondisclosure laws.(126)

The critical distinction between the three-part analysis of In re Uranium and the four-part analysis of Minpeco is the greater weight In re Uranium places upon discerning the strength of American interests and its deferral of any good faith analysis to the decision regarding Rule 37 sanctions for noncompliance with the court's discovery order.(127)

The facts surrounding the In re Uranium case are compelling. Westinghouse Corporation was the victim of a price fixing scheme enacted by a worldwide uranium cartel, organized with the intent of putting Westinghouse out of the uranium/nuclear power business.(128) When Westinghouse, which had enacted contracts with uranium producers worldwide, saw its price for uranium ore jump from $10-$15 per metric ton to over $40 per metric ton in under one year, it had no choice but to stop delivery on its shipments of enriched uranium to various electric utilities that were dependant upon nuclear power to supply their customers.(129) These utilities brought suit against Westinghouse for breach of contract, which Westinghouse unsuccessfully defended on the legal theory of commercial impracticability.(130) Faced with the possibility of bankruptcy, Westinghouse decided to sue its suppliers of uranium ore, some of which were U.S. companies, for antitrust violations, misrepresentation, and fraud.(131) Critical to Westinghouse's case was the ability to obtain discovery of inculpatory documents that several defendants had conveniently stored in foreign jurisdictions.(132)

Not surprisingly, foreign governments were quite susceptible to pressure from major corporations headquartered within their borders to prevent disclosure of embarrassing, and potentially illegal, secrets regarding the existence and operation of a worldwide cartel engaging in price fixing on a grand scale.(133) Canadian, Australian, and South African lawmakers responded by enacting statutes for the express purpose of impairing the power of U.S. courts to extend their jurisdiction abroad.(134)

The In re Uranium Court responded by crafting a simplified and more manageable balancing test using the key factors identified by the Supreme Court in its Societe Internationale decision.(135) The court reasoned that by emphasizing the important congressional policy reflected in enacting antitrust legislation, the Supreme Court in Societe Internationale intended that American interests be adequately protected in the face of foreign blocking statutes.(136) Further, because the Supreme Court gave no hint that the disclosure policies of the American statute should be balanced against the secrecy laws of Switzerland, the district court concluded that the only pertinent inquiry was the strength of the American interests reflected in the legislation that gave rise to the cause of action.(137) The district court decision correctly asserts that the Supreme Court in Societe Internationale reserves certain factors for consideration solely at the sanctions phase of the enforcement process.(138)

Chief among these factors is any assessment of the good or bad faith of the party resisting disclosure,(139) As the Supreme Court pointed out in Societe Internationale, such an analysis is relevant only after compelled production has not been performed.(140)

V. THE LIMITATIONS OF COMITY

The discussion above points out not only the essential nature of the comity analysis to any litigation involving foreign courts, it also highlights the limitations of the comity analysis in the context of foreign blocking statutes.(141) Seeking definitive boundaries for a doctrine comprising the interplay of politics, courtesy, and good faith among nations is demanding under the best of circumstances.(142) United States courts have found some guidance in the notion of reciprocity, so that they generally enforce final judgments of foreign courts of competent jurisdiction in a manner similar to the regard given U.S. courts in the foreign jurisdiction in question.(143) Although a good general rule, in practice the doctrine of reciprocity becomes not only difficult to enforce, but unfair as well.(144)

A. The Importance of Protecting U.S. Interests From Opportunistic Foreign Legislation

1. The Principle of Reciprocity

The principle of reciprocity works well when all parties involved are determined to place international comity ahead of national interest.(145) However, this is not always the case. The common law "parallel proceedings rule" serves as a prime example of the type of protective practices that undermine international comity.(146) United States case law establishes that where an in personam judgment is sought and both a U.S. court and a foreign court have concurrent jurisdiction, each court may proceed until a judgment is reached in one court which may then be recognized as res judicata in the other.(147) Because of the parallel proceedings rule, U.S. courts are reluctant to issue restraining orders preventing parties from bringing the same suit in a foreign court.(148) This policy serves the interest of international comity by discouraging interference in the legal proceedings of other nations.(149) However, it backfires on U.S. plaintiffs when a foreign defendant convinces the courts of its nation to issue a declaratory judgment in its favor despite the litigation pending in a U.S. court.(150) In such an instance, the U.S. court's adherence to principles of comity--by allowing the defendant to proceed with litigation in the foreign jurisdiction--has allowed a foreign defendant to thwart the valid jurisdiction of U.S. courts.(151) This works against the U.S. plaintiff, who may be left with a valid final judgment in its favor from the U.S. court which heard the case, but is absolutely powerless to enforce the judgment in the nation where the defendant resides because of the declaratory judgment issued in the defendant's favor.(152)

2. The Appropriate Scope of the Comity Analysis

Should a court decide to order production, comity demands that the documents compelled be identified with specificity.(153) Narrowing the focus of discovery to only those documents deemed essential to the litigation is an important concession to the policies underlying many foreign judicial systems.(154)

This is a significant change from the usual U.S. practice allowing discovery of any documents "reasonably calculated to lead to the discovery of admissible evidence."(155) Comity demands that U.S. courts exercise restraint when exerting their jurisdiction over documents located on foreign soil.(156) Nevertheless, this restraint should not consist of such deference to comity that parties to the suit are denied relief altogether because of misguided notions of undue reverence for foreign blocking statutes.(157)

Not only is the heightened analysis advocated by the Minpeco court ill-conceived in its approach to weighing U.S. and foreign interests in their respective legislation, it is also deficient in its good faith analysis.(158) Indeed, in light of the Societe Internationale opinion, it is inefficient and unfair to the party seeking discovery for the court to perform an analysis of the good faith of the party resisting discovery both when determining whether to order production and then again when determining whether to impose sanctions for nonproduction.(159) The application of the good faith analysis opens the door to manipulation of U.S. courts through lengthy haggling over whether good faith has in fact been exercised by the resisting party.(160) At best, such an approach unduly lengthens the discovery process without seriously damaging the case of the party seeking disclosure of documents subject to foreign blocking statutes. However, a court often ends up giving so much deference to the supposed good faith of the resisting party that documents vital to the litigation are not ordered to be produced, thus denying any remedy to the party seeking discovery.(161)

B. Rule 37 Sanctions For Nonproduction

Ideally, discovery will proceed without significant court intervention. When one party fails to produce documents, however, the court must decide whether to order that production.(162) If the court issues a discovery order and the party continues to refuse to comply, the court may choose to enforce its prior order.(163) The Federal Rules of Civil Procedure authorize district courts to order sanctions for failure to abide by a court's previous discovery ruling.(164)

The latitude of choices given to the trial court in assessing sanctions indicates that the prudent judge will weigh the resisting party's conduct when determining not only whether to impose sanctions, but also the degree of punishment.(165) It is at this stage of the litigation, and not before, that an assessment of the nonproducing party's good faith is relevant to the court's analysis.(166)

Sanctions should always be imposed in cases where a court order is not obeyed.(167) In cases where the nonproducing party made a good faith attempt at complying with the court order compelling production but was prevented from doing so by foreign legislation which in fact covered the documents in question, it is appropriate to impose the least onerous sanction mentioned in Rule 37--adverse inferences.(168) Under the adverse inferences doctrine, any facts which cannot be conclusively established due to the nonproducing party's failure to comply with the court order are construed in accordance with the claim of the party seeking production.(169) By so doing, neither the nonproducing party nor the foreign nation resisting openness and truth are rewarded for their failure to be forthcoming.(170) In cases where a lack of good faith effort at compliance is demonstrated, the court is free to impose sanctions ranging from stifling the disobedient party's case to dismissing it altogether.(171) Either way, international comity will have served its purpose under the doctrine of reciprocity.(172)

VI. CONCLUSION

Because of foreign antipathy toward U.S. antitrust and securities legislation, collusion between foreign governments and foreign businesses in resisting production of documents essential to U.S. litigation is an unpleasant reality which thwarts the efforts of U.S. courts to exercise their rightful jurisdictional privileges.(173) This is unlikely to diminish without a significant disincentive.(174) Accordingly, it is in the best interest of U.S. courts to arrive at a comity analysis that does not provide incentives to foreign governments to enact further blocking statutes and that provides incentive for them to reconsider the ones already in place.(175) Postponing analysis until the sanctions phase of the proceedings accomplishes this goal.(176) It focuses the court's analysis during the production phase of the litigation on more objective standards, such as the importance of the American interests underlying the legislation that gives rise to the cause of action and the importance of the documents requested.(177) Additionally, obligation to international comity is best satisfied at the production stage by narrowing the focus of any discovery order to only those documents deemed essential to the litigation, and by assessing the flexibility of the foreign blocking statute that is impeding production.

Once U.S. courts agree upon an appropriate comity analysis, it must be applied with consistency. This will send a clear signal to those nations that may be tempted to collude with business interests within their borders that U.S. courts have gotten their bearings and are now united in their intent to pursue discovery of essential documents regardless of the impediment of foreign illegality. Both foreign governments and businesses that house documents abroad will then have settled guidelines for their actions and policies regarding business activities in the United States.

(1.) Taking exception to the extraterritorial application of U.S. antitrust and securities laws, many nations have instituted legislation forbidding the disclosure of relevant commercial documents. Three types of regulations are common: (a) older laws drafted without U.S. litigation in view, yet now applied to thwart that litigation; (b) blanket protection for broad categories of material with discretionary powers vested in some government official; and (c) specifically targeted legislation aimed at denying disclosure of documents in a particular case. See David E. Teitelbaum, Strict Enforcement of Extraterritorial Discovery, 38 STAN L. REV. 841, 846-48 (1986). Some foreign collateral suits are allowed in the foreign jurisdiction to regain the compensatory laws express open hostility for U.S. discovery by containing "clawback" provisions whereby damages portion of U.S. treble damages awards. See id. at 848 n.29; see also Protection of Trading Interests Act 1980, [sections] 6(1)-(4) (Eng.).

(2.) See In re Uranium Antitrust Litig., 480 F. Supp. 1138, 1143 (N.D. Ill. 1979) (addressing Canadian, Australian, and South African statutes enacted for the express purpose of impairing jurisdiction of U.S. courts). Particularly striking are Canada's Uranium Information Security Regulations, which unabashedly block U.S. antitrust litigation by forbidding production of any documents relating to "conversations, discussions or meetings that took place between January 1, 1972 and December 31, 1975 involving that person or any other person or any government, crown corporation, agency or other organization in respect of the production, import, export, ... use or sale of uranium." Uranium Information Security Regulations, C.R.C., ch. 366, [sections] 3 (1978) (Can.).

(3.) See RESTATEMENT (THIRD) OF THE FOREIGN RELATION LAW OF THE UNITED STATES [sections] 442 reporter's note 1 (1987).

(4.) See Societe Internationale Pour Participations Industrialles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 199-201 (1958) (the leading Supreme Court case on the subject).

(5.) Ideally, discovery will proceed without significant court intervention. When one party fails to produce documents, however, the court must decide whether to order that production. If the court issues a discovery order and the party continues to refuse to comply, the court may enforce its prior order. Rule 37 includes the general provision that authorizes district courts to order sanctions for failure to abide by a previous discovery ruling. These sanctions include, but are not limited to:

   (A) An order that the matters regarding which the order was made or any
   other designated facts shall be taken to be established for the purposes of
   the action in accordance with the claim of the party obtaining the order;

   (B) An order refusing to allow the disobedient party to support or oppose
   designated claims or defenses, or prohibiting that party from introducing
   designated matters in evidence;

   (C) An order striking out pleadings or parts thereof, or staying further
   proceedings until the order is obeyed, or dismissing the action or
   proceeding or any part thereof, or rendering a judgment by default against
   the disobedient party;

   (D) In lieu of any of the foregoing orders or in addition thereto, an order
   treating as a contempt of court the failure to obey any orders[.]

FED. R. CIV. P. 37(b)(2).

(6.) See notes 83-108 infra and accompanying text.

(7.) See notes 83-108 infra and accompanying text.

(8.) See Societe Internationale, 357 U.S. at 211-13; see also Teitelbaum, supra note 1, at 844-46, 851.

(9.) See Teitelbaum, supra note 1, at 844-46, 851.

(10.) See notes 141-61 infra and accompanying text.

(11.) See David S. Pennock, U.S. Procedures for Obtaining Discovery Abroad for Use in Proceedings in the United States, in OBTAINING DISCOVERY ABROAD 1, 20 (ABA Antitrust Trial Practice Handbook Series v. 1, 1990).

(12.) See Societe Nationale Industrielle Aerospatiale v. United States Dist. Court, 482 U.S. 522, 531-32 (1987); see also Teitelbaum, supra note 1, at 846.

(13.) See Teitelbaum, supra note 1, at 846.

(14.) See id.

(15.) See id. at 846-49.

(16.) See id. at 846-48.

(17.) Note the Supreme Court's view of blocking statutes expressed in Aerospatiale:

      The French "blocking statute," does not alter our conclusion. It is well
   settled that such statutes do not deprive an American court of the power to
   order a party subject to its jurisdiction to produce evidence even though
   the act of production may violate that statute. Nor can the enactment of
   such a statute by a foreign nation require American courts to engraft a
   rule of first resort onto the Hague Convention, or otherwise to provide the
   nationals of such a country with a preferred status in our courts. It is
   clear that American courts are not required to adhere blindly to the
   directives of such a statute. Indeed, the language of the statute, if taken
   literally, would appear to represent an extraordinary exercise of
   legislative jurisdiction by the Republic of France over a United States
   district judge, forbidding him or her from ordering any discovery from a
   party of French nationality, even simple requests for admissions or
   interrogatories that the party could respond to on the basis of personal
   knowledge. It would be particularly incongruous to recognize such a
   preference for corporations that are wholly owned by the enacting nation.
   Extraterritorial assertions of jurisdiction are not one-sided. While the
   District Court's discovery orders arguably have some impact in France, the
   French blocking statute asserts similar authority over acts to take place
   in this country. The lesson of comity is that neither the discovery order
   nor the blocking statute can have the same omnipresent effect that it would
   have in a world of only one sovereign. The blocking statute thus is
   relevant to the court's particularized comity analysis only to the extent
   that its terms and its enforcement identify the nature of the sovereign
   interests in nondisclosure of specific kinds of material.

      The American Law Institute has summarized this interplay of blocking
   statutes and discovery orders: "When a state has jurisdiction to prescribe
   and its courts have jurisdiction to adjudicate, adjudication should
   (subject to generally applicable rules of evidence) take place on the basis
   of the best information available ... [Blocking] statutes that frustrate
   this goal need not be given the same deference by courts of the United
   States as substantive rules of law at variance with the law of the United
   States." "On the other hand, the degree of friction created by discovery
   requests ... and the differing perceptions of the acceptability of
   American-style discovery under national and international law, suggest some
   efforts to moderate the application abroad of U.S. procedural techniques,
   consistent with the overall principle of reasonableness in the exercise of
   jurisdiction."

Aerospatiale, 482 U.S. at 544 n.29 (emphasis added) (citations omitted) (quoting RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES (Revised) [sections] 437 reporter's note 5 (Tentative Draft No. 7, 1986)).

(18.) See, e.g., Uranium Information Security Regulations, C.R.C., ch. 366, [sections] 3 (1978) (Can.) (Canadian statute prohibiting production of documents in response to United States litigation); see also JAMES B. STEWART, THE PARTNERS: INSIDE AMERICA'S MOST POWERFUL LAW FIRMS 178-81 (1983).

(19.) Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature Mar. 18, 1970, 23 U.S.T. 2555 [hereinafter the Hague Convention]; see also Aerospatiale, 482 U.S. at 541-43, 544 n.29.

(20.) See the Hague Convention, supra note 19, 23 U.S.T. at 2557.

(21.) See id. at 2555-57. (The Convention was opened for signature on March 18, 1970).

(22.) See ROK Joins Hague Convention on Judicial Documents, World News Connection, Jan. 13, 2000, available in 2000 WL 3994118.

(23.) See id.

(24.) See the Hague Convention, supra note 19, 23 U.S.T. at 2557.

(25.) See Societe Nationale Industrielle Aerospatiale v. United States Dist. Court, 482 U.S. 522, 530 (1987).

(26.) See Pennock, supra note 11, at 9.

(27.) See id. at 9-10.

(28.) See the Hague Convention, supra note 19, 23 U.S.T. at 2557-64.

(29.) See id. at 2558.

(30.) See id. at 2557-58.

(31.) See id.

(32.) See id. 2560-63.

(33.) See id. at 2561-63.

(34.) See id. at 2568 (stating that a Contracting State may refuse to execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries).

(35.) Id.

(36.) See Pennock, supra note 11, at 13-14.

(37.) See id. at 13 (asserting that most signatories to the Convention oppose American style document discovery).

(38.) See, e.g., In re Anschuetz & Co., 838 F.2d 1362, 1364 (5th Cir. 1988) (noting that many foreign countries do not subscribe to our open-ended views regarding pretrial discovery); In re Benton Graphics v. Uddenholm Corp., 118 F.R.D. 386 (D.N.J. 1987) (relating that the Supreme Court rejected the position that a party would first be required to utilize Hague Convention procedures whenever discovery is sought of a foreign litigant).

(39.) See, e.g., Pierburg GmbH & Co. v. Superior Court, 186 Cal. Rptr. 876 (Cal. App. 3d 1982) (holding that the trial court abused its discretion when ruling that the Hague Convention need not be utilized by a U.S. plaintiff seeking discovery of a West German defendant).

(40.) See notes 41-43 infra and accompanying text.

(41.) See Philadelphia Gear Corp. v. American Pfauter Corp., 100 F.R.D. 58, 60 (E.D. Penn. 1983).

(42.) See, e.g., Goldschmidt A.G. v. Smith, 676 S.W.2d 443 (Tex.App.--Houston [1st Dist.] 1984, no writ) (holding that an American company was required to comply with the Hague Convention procedures as an avenue of first resort in seeking production of documents by a West German corporation).

(43.) See In re Anschuetz, 754 F.2d at 615 (holding that a German corporation subject to the jurisdiction of the district court was required to comply with discovery pursuant to the Federal Rules of Civil Procedure).

(44.) See Societe Nationale Industrielle Aerospatiale v. United States Dist. Court, 482 U.S. 522, 539-40 (1987).

(45.) Id. at 546 (citations omitted) (emphasis added).

(46.) See id.

(47.) Id. at 544 n.27.

(48.) See Aerospatiale, 482 U.S. at 543-544.

(49.) Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937 (D.C. Cir. 1984).

(50.) Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).

(51.) See Pennock, supra note 11, at 4-7 (expressing that U.S. courts make great use of comity analysis in international disputes).

(52.) See Laker Airways, 731 F.2d at 916. The court further observed that the case represented a "head-on collision between the diametrically opposed antitrust policies of the United States and United Kingdom, and is perhaps the most pronounced example in recent years of the problems raised by the concurrent jurisdictions held by several states over transactions substantially affecting several states' interests." Id. The court eventually decided that it could not determine which sovereign's interests should take precedence. See id. at 948-49.

(53.) See Paul Robert Eckert, Note, Utilizing the Doctrine of Adverse Inferences when Foreign Illegality Prohibits Discovery: A Proposed Alternative, 37 WM. & MARY L. REV. 749, 760-71 (1996) (weighing the various factors).

(54.) See Societe Internationale Pour Participations Industrialles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 208 (1958) (dismissing petitioner's claim despite a finding that petitioner acted in good faith was inappropriate).

(55.) See FED. R. CIV. P. 1 (asserting that the Federal Rules of Civil Procedure are intended to "secure the just, speedy, and inexpensive determination of every action").

(56.) See Pennock, supra note 11, at 1-2 (demonstrating the importance of discovery by listing various methods that can be used to obtain discoverable information in foreign countries).

(57.) See id. at 3-7.

(58.) See supra notes 1 & 2.

(59.) See Pennock, supra note 11, at 18-21.

(60.) Societe Internationale Pour Participations Industrialles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 198 (1958).

(61.) See id. at 204.

(62.) See id. at 200.

(63.) See id. at 201-02.

(64.) See id. at 204, 213.

(65.) See id. 205-7; see also Lenore B. Brown, Extraterritorial Discovery: An Analysis Based On Good Faith, 83 COLUM. L. REV. 1320, 1330 (1983).

(66.) See Societe Internationale, 357 U.S. at 205; see also Thomas Scott Murley, Compelling Production of Documents In Violation of Foreign Law: An Examination and Reevaluation of The American Position, 50 FORDHAM L. REV. 877, 890 (1982) (discussing application of factors in the issuance of a production order in Societe).

(67.) FED. R. CIV. P. 26(b)(1).

(68.) See Societe Internationale, 357 U.S. at 205; see also Murley, supra note 66, at 890.

(69.) See Societe Internationale, 357 U.S. 197.

(70.) See Murley, supra note 66, at 891.

(71.) Societe Internationale, 357 U.S. at 206.

(72.) See notes 83-124 infra and accompanying text.

(73.) Societe Internationale, 357 U.S. at 211.

(74.) See Teitelbaum, supra note 1, at 846.

(75.) See In re Chase Manhattan Bank, 297 F.2d 611, 613 (2d Cir. 1962) (demonstrating where a grand jury request for Chase Manhattan documents located in Panama was greeted by a Panamanian law that made disclosure of the very documents sought by the court a criminal offense. The Second Circuit Court capitulated, deferring to "fundamental principles of international comity" and refusing to order production).

(76.) See Teitelbaum, supra note 1, at 846.

(77.) See, e.g., General Atomic Co. v. Exxon Nuclear Co., 90 F.R.D. 290, 302 (S.D. Cal. 1981) (involving stored documents in Canada and possible collusion with Canadian government); see also Ohio v. Arthur Anderson & Co., 570 F.2d 1370, 1373 (10th Cir.) (demonstrating the rationale behind denying a foreign illegality excuse when the company vigorously asserts protection of Swiss secrecy laws only to find that those laws did not cover their situation).

(78.) See In re Uranium Antitrust Litig., 480 F. Supp. 1138, 1145 (N.D. Ill. 1979).

(79.) See Societe Internationale Pour Participations Industrialles et Commerciales, S.A.v. Rogers, 357 U.S. 197, 211-12 (1958).

(80.) See Minepco, S.A.v. Conticommodity Services, Inc., 116 F.R.D. 517, 522 (S.D.N.Y. 1987).

(81.) See Tietelbaum, supra note 1, at 846; see also In re Uranium, 480 F. Supp. at 1145.

(82.) See notes 83-124 infra and accompanying text.

(83.) See First Nat'l City Bank v. IRS, 271 F.2d 616, 619 (2d Cir. 1959); see also Ings v. Ferguson, 282 F.2d 149, 152 (2d Cir. 1960); In re Chase Manhattan Bank, 297 F.2d 611, 613 (2d Cir. 1962).

(84.) See In re Chase Manhattan Bank, 297 F.2d at 611-13.

(85.) Id. at 613.

(86.) See id. at 611-612.

(87.) See id at 612.

(88.) Id. at 613 (quoting the Second Circuit's earlier decision in First Nat'l City Bank, 271 F.2d at 619).

(89.) Id.

(90.) Id. The court added:

   [W]e also have an obligation to respect the laws of other sovereign states
   even though they may differ in economic and legal philosophy from our own.
   As we recently said in modifying subpoenas duces tecum in another case,
   `upon fundamental principles of international comity, our courts dedicated
   to the enforcement of our laws should not take such action as may cause a
   violation of the laws of a friendly neighbor or, at the least, an
   unnecessary circumvention of its procedures.'

Id. (citation omitted) (quoting Ings, 282 F.2d at 149). In Ings v. Ferguson, the court modified an order of the district court denying motions to quash subpoenas duces tecum calling for production by New York agencies of Canadian banks of records located outside the United States. The Circuit Court allowed the subpoenas to be modified to require production only of documents that might be in possession of agencies in New York. See Ings, 282 F.2d at 152.

(91.) See In re Chase Manhattan Bank, 297 F.2d at 613; see also Ings, 282 F.2d at 152.

(92.) See Ings, 282 F.2d at 153.

(93.) Id. at 151 (emphasis added).

(94.) See supra notes 1 & 2 and accompanying text.

(95.) See Eckert, supra note 53, at 766-67.

(96.) See id. at 765-66.

(97.) See Arthur Andersen & Co. v. Finesilver, 546 F.2d 338 (10th Cir. 1976).

(98.) See id. at 339-40.

(99.) Id. at 341.

(100.) Id. at 342.

(101.) See Ohio v. Arthur Andersen & Co., 570 F.2d 1370 (10th Cir. 1978).

(102.) Id. at 1375.

(103.) Id. at 1373.

(104.) Id. at 1375. Cf. In re Westinghouse Electric Corp. Uranium Contracts Litig., 563 F.2d 992, 999 (10th Cir. 1977) (balancing the good faith efforts of the nonproducing party and the interests of Canada and the United States and holding that sanctions were not appropriate as a punishment for nonproduction).

(105.) See Finesilver, 546 F.2d at 342; see also Ohio, 570 F.2d at 1375-76.

(106.) Finesilver, 546 F.2d at 342 (citation omitted) (emphasis added).

(107.) See In re Westinghouse, 563 F.2d at 999.

(108.) See notes 60-82 supra and accompanying text.

(109.) See notes 125-40 infra and accompanying text.

(110.) Compare United States v. Vetco, Inc., 691 F.2d 1281, 1288 (9th Cir. 1981) (utilizing a straight RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW [section] 40 balancing test), with Minpeco v. S.A. Conticommodity Services, Inc., 116 F.R.D. 517, 522-23 (S.D.N.Y. 1987) (crafting a modified [section] 40 analysis).

(111.) See Minpeco, 116 F.R.D. at 522

(112.) Id. at 519.

(113.) See id.

(114.) Id. at 520-21.

(115.) See id. at 521.

(116.) See id. at 522.

(117.) See id.

(118.) See id.

(119.) See id. (citing Societe Internationale Pour Participations Industrialles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 212 (1958)). The issue of the party's good faith is reflected as well in the Restatement: "Where two states have jurisdiction to prescribe and enforce rules of law and the rules they may prescribe require inconsistent conduct upon the part of a person, each state is required by international law to consider, in good faith, moderating the exercise of its enforcement jurisdiction...." RESTATEMENT (SECOND) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [sections] 40 (1965) (emphasis added).

(120.) Minpeco, 116 F.R.D. at 523.

(121.) See Alfadda v. Fenn, 149 F.R.D. 28, 34 (S.D.N.Y. 1993) (attempting to apply the same four-part test).

(122.) Minpeco, 116 F.R.D. at 522.

(123.) Id. at 521.

(124.) See Daniela Levarda, A Comparative Study of U.S. and British Approaches to Discovery Conflicts: Achieving a Uniform System of Extraterritorial Discovery, 18 FORDHAM INT'L L.J. 1340, 1361 (1995); see also International Agreements and Understandings for Production of Information and Other Mutual Assistance, 29 INT'L LAW. 780, 780-81 (1995).

(125.) In re Uranium Antitrust Litig., 480 F. Supp. 1138, 1146-48 (N.D. Ill. 1979).

(126.) Id. at 1148.

(127.) Id. at 1147-48; see also Minpeco, 116 F.R.D. at 521.

(128.) See STEWART, supra note 18, at 171, 178.

(129.) See id. at 153-70; see also In re Westinghouse Electric Corp. Uranium Contracts Litig., 563 F.2d 1992 (10th Cir. 1977) (determining the appellate outcome of the suit fried by Westinghouse against uranium producers).

(130.) See STEWART, supra note 18, at 153, 162, 192-93.

(131.) See id. at 161, 178; see also In re Uranium, 480 F. Supp. at 1138.

(132.) See STEWART, supra note 18, at 178.

(133.) See In re Uranium, 480 F. Supp. at 1143; see also STEWART, supra note 18, at 177, 185.

(134.) See In re Uranium, 480 F. Supp. at 1143. The laws "generally prohibit the production of any document relating to uranium marketing activities from 1972 through 1975 and also prohibit communications that would result in the disclosure of the contents of such documents." Id.

(135.) Id. at 1148.

(136.) See id. at 1146.

(137.) Id.

(138.) Id. at 1147.

(139.) See id.

(140.) See Societe Internationale Pour Participations Industrialles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 208 (1958); see also In re Uranium, 480 F. Supp. at 1147.

(141.) See supra notes 121-34 and accompanying text.

(142.) See Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).

(143.) See id. at 166 (determining that a judgment rendered in a French court against a U.S. citizen was only prima facie evidence in an action brought upon the judgment in the United States because the French courts do not recognize the judgments of U.S. courts as conclusive).

(144.) See notes 125-40 supra and accompanying text.

(145.) See Hilton, 159 U.S. at 165-66.

(146.) Julie E. Dowler, Forging Finality: Searching for a Solution to the International Double-Suit Dilemma, 4 DUKE J. COMP. & INT'L. L. 363, 368-69 (1994).

(147.) See Laker Airways Ltd. v. Sabena, Belgium World Airlines, 731 F.2d 909, 926-27 (D.C. Cir. 1984).

(148.) See id.

(149.) See id. at 927.

(150.) See Dowler, supra note 146, at 368-69.

(151.) See id. at 369.

(152.) See id.

(153.) See RESTATEMENT (THIRD) OF THE FOREIGN RELATION LAW OF THE UNITED STATES [sections] 473 cmt. h (1987)

(154.) See supra notes 12-18 and accompanying text.

(155.) FED. R. CIV. P. 26(b)(1).

(156.) See supra text accompanying notes 65-69.

(157.) See Teitelbaum, supra note 1, at 869.

(158.) See notes 121-24 supra, and accompanying text.

(159.) See id. at 208 (stating the good faith of the party resisting discovery is relevant only when determining whether or not to impose sanctions).

(160.) See Minpeco, S.A. v. Conticommodity Services, Inc., 116 F.R.D. 517, 527-29 (S.D.N.Y. 1987).

(161.) See id. at 528-29.

(162.) See In re Westinghouse Electric Corporation Uranium Contracts Litig., 563 F.2d 992, 997 (10th Cir. 1977).

(163.) See id. at 994-95.

(164.) See FED. R. CIV. P. 37(b).

(165.) See Societe Internationale Pour Participations Industrialles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 208 (1958).

(166.) See id.

(167.) See Eckert, supra note 53, at 787.

(168.) See id. at 785-86.

(169.) See id.; see also FED. R. CIV. P. 37(b)(2).

(170.) See Eckert, supra note 53, at 787.

(171.) See FED. R. CIV. P. 37(b)(2).

(172.) See Hilton v. Guyot, 159 U.S. 113, 166 (1895).

(173.) See notes 1-5 supra and accompanying text.

(174.) See Teitelbaum, supra note 1, at 869-70.

(175.) See id.

(176.) See In re Uranium Antitrust Litig., 480 F. Supp. 1138, 1147-48 (N.D. Ill. 1978).

(177.) See id.

David Brewer, This Comment received the Tindall & Foster, P.C. Writing Award.