Obtaining Discovery From Foreign Entities in Patent Litigation

Balancing the Need for Discovery and Foreign Privacy Laws

A live 90-minute premium CLE video webinar with interactive Q&A


Tuesday, January 18, 2022

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, December 17, 2021

or call 1-800-926-7926

This CLE course will guide patent litigators on overcoming challenges when conducting discovery outside the U.S. The panel will examine national privacy and blocking laws that impede discovery outside the U.S. and how the courts treat the issue. The panel will discuss the international comity analysis, the Hague Evidence Convention, letters rogatory, and offer best practices for successfully conducting discovery.

Description

U.S. district courts have taken different approaches when balancing the need for discovery from outside the U.S. against foreign privacy and blocking laws. For example, European companies may generally interpret the EU General Data Protection Regulation (GDPR) to call for redactions of personal information produced in U.S. litigation. Some European countries have also enacted national privacy laws that present an additional hurdle for U.S. litigators seeking to discover information from European companies.

U.S. courts apply a five-factor international comity analysis suggested by the Supreme Court in its seminal Societe Nationale Industrielle Aerospatiale v. U.S. District Court decision (1987) to determine if the foreign laws can prevent or impede discovery. Examples of these types of foreign laws are blocking, secrecy, or privacy laws that may limit U.S. discovery requests. The courts have applied these factors differently and also developed additional factors that are often considered under the comity analysis.

Since the Supreme Court’s Aerospatiale decision, most U.S. courts have allowed foreign discovery to proceed under the Federal Rules of Civil Procedure. However, some U.S. courts have ordered discovery through the Hague Evidence Convention. Because many European countries interpret the Hague Convention as binding, its procedures can work in tandem with and provide protection to those subject to the national privacy laws, and thus practitioners need to be familiar with its operation.

As U.S. courts continue to adapt to the evolving framework of international privacy laws, patent litigators need to understand the Hague Evidence Convention, letters rogatory, and other options (including particularly under the Federal Rules of Civil Procedure) for discovering relevant information from parties or non-parties to the suit outside the U.S.

Listen as our authoritative panel of patent attorneys examines the national privacy laws that make discovery a challenge outside the U.S. and how the courts treat the issue. The panel will discuss the international comity analysis and the Hague Evidence Convention, as well as offer best practices for successfully conducting discovery.

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Outline

  1. National laws impeding discovery outside the U.S.
  2. Court treatment
  3. Discovery under the Hague Evidence Convention
  4. Best practices for discovery outside the U.S.

Benefits

The panel will review these and other key issues:

  • How have the courts addressed discovery of information from foreign companies?
  • How can litigators leverage the Hague Evidence Convention, letters rogatory, and the Federal Rules to conduct discovery of companies outside the U.S.?
  • What are the differences including timing between letters of request under the Hague Convention and letters rogatory?
  • What best practices should counsel employ when conducting discovery outside the U.S.?

Faculty

Busey, G. Brian
G. Brian Busey

Senior Of Counsel
Morrison & Foerster

Mr. Busey’s practice focuses on complex intellectual property matters—particularly those before the U.S....  |  Read More

Jameson, Samantha
Samantha Jameson

Partner
Tensegrity Law Group

Ms. Jameson has patent litigation experience in U.S. district courts and the International Trade...  |  Read More

Attend on January 18

Early Discount (through 12/17/21)

Cannot Attend January 18?

Early Discount (through 12/17/21)

You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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