International Comity Analysis On American Taking Civil Evidence Abroad

From Gucci in 2010 to Nike in 2018,Chinese banks,as foreign witnesses,are under the jurisdiction of the US courts and are required to provide evidence in violation of Chinese laws,second,international comity,these two issues are also the United States extraterritorial expansion of civil evidence specific performance.The United States can obtain evidence from foreign courts through mutual legal assistance,and it can also obtain evidence from other countries according to its federal rules.Jurisdiction is the source of the power to obtain evidence when the domestic rules are used for evidence collection,and the exercise of that power may cause conflicts with the laws of other countries.A foreign rule prohibiting the disclosure of evidence would not deprive a United States court of its power to order a party subject to its jurisdiction to produce evidence,even if the disclosure might violate that rule.As a restrictive principle,international comity plays an important role in restricting the exercise of extraterritorial evidence-gathering power,and is used to judge whether the extraterritorial evidence-gathering order is reasonable or not.Due to the abstract nature of international comity,in practice,the court has made a methodological approach to international comity and used factor test to conduct comity analysisFrom the specific application of the element test,the importance of requesting information requires that the requested information should be relevant to the case,and that the requested information should be proportional and proportionate to the needs of the case.The Standard of materiality of information requested cannot be met if the information requested is of low relevance to the case,is irrelevant or is merely a large accumulation of the evidence produced.As to the specific degree of the request for information,the court would normally require the request for discovery to have a definite scope and avoid being too broad.Courts generally replace the source of information with the location of the information when considering it,and its effect is offset when the element has a very limited effect,even in the absence of alternative means.As for the element of alternative means,the court has higher requirements in feasibility,efficiency and cost.The last element of balance of interests requires the court to balance the interests of foreign countries with those of the United States,moreover,the fact that there is an enforcement requirement for the Foreign Barriers Act,even if the barriers act is occasionally enforced,does not mean that the United States courts will immediately comply with the barriers act.According to the statistical results of the empirical analysis,when the courts use factor test to conduct comity analysis,they tend to lean to the discovery of evidenceThrough the analysis of the application of the five factors and the statistical results,we can find that the international comity is limited,and we can see that there are some problems in the operation of the factor test from the different results of the two cases of Tiffany and Gucci.The Supreme Court in Aerospatiale did not provide the necessary guidance on how to base its decision on these factors,but rather left it to the lower courts to determine the circumstances of the case,so that the test of the factors was itself inconclusive,this has also led to confusion in the lower courts' analysis of the application of the elements,such as the raising of the applicable standards and the lack of consideration of the interests of the system,and the courts tend to attach too much importance to the interests of the United States in cases involving foreign parties or laws,American courts tend to be biased towards American parties and American law,and have subjective bias towards their own interests.And often underestimate the foreign interests,even bias,and the court lacks the correct understanding of the foreign interests,under the combined effect of these issues,the court practice results and the original intention of factor testing set awayAlthough there are some problems in the application of factor analysis in American courts and international comity has been limited,China can start with the factor test and deal with it accordingly.Reflecting the fact that the information sought is proportional to the needs of the case in both importance and specificity,the principle of proportionality can be fully utilized to protect the interests of the requested party and to reject more intrusive means of discovery,alternatively,the scope of discovery can be reduced through staged discovery,sampling and the use of scientific techniques such as predictive coding to reduce the burden on the requested party,and protection orders can be applied to transfer part or all of the discovery costs to the requesting party Second,efforts should be made to find new alternatives and to enhance the attractiveness of the existing instruments,The Hague forensics convention.In particular,evidence-gathering paths outside the convention could be actively explored through increased efficiency and transparency in its implementation and the use of electronic information technology to improve its implementation,while strengthening bilateral judicial collaboration with the United States.Finally,international comity should not be limited to one side,while the opportunity of international comity on the other side should be ignored,even though the restraint aspect of international comity does not play its due role in the factor test,however,the principle of judicial comity facilitates the foreign parties to obtain evidence,our parties should make full use of 1782 to obtain relevant evidence from American.