Discovery Across National Frontiers
As the preceding chapters have shown, there has been no lack of controversy in regard to jurisdiction to prescribe, jurisdiction to adjudicate, and recognition of judgments across national frontiers. Still, no aspect of international litigation has caused as much friction as the issue of discovery.1 And more, I think, than any other focal points of controversy, the controversy over discovery is not one pitting the common law against the civil law, but rather one pitting the United States of America against the rest of the world. England, for instance, including both the courts and Parliament, has been in the forefront of resistance to American-style discovery, which is in many ways quite different from discovery in England.2 In this regard, the aphorism attributed to George Bernard Shaw about America and England--two countries divided by a common language--is clearly correct.
I want to try to explore here at least some of the ingredients in this controversy. There seem to be three strands to the conflict. I will try in this and the following chapter to weave them together, but I think it is important to recognize them as separate strands. What all elements of the conflict have in common is a desire by the United States--litigants, governments, and courts--for disclosure, particularly of documents, and resistance to such disclosure by everyone else.
Roughly speaking, the conflicts can be divided into (i) purely civil litigation, primarily product liability actions, in which American plaintiffs allege injury caused by defective products made abroad--automobiles, airplanes, or machines--and seek to use American-style discovery to find out the facts that could establish a defect in the product; (ii) public law litigation alleging conduct that is deemed unlawful in the United States but in one way or another is condoned or protected by foreign countries--cartels of various kinds, shipping conferences, and the like; and (iii) public law litigation in which no country defends the underlying conduct, such as drug trafficking or United Nations sanctions-busting, but countries in varying degrees defend their 'turf', including in particular the secrecy____________________