On The Restriction Of American Extraterritorial Discovery

Nowadays,the world is undergoing the greatest changes in a century.Influenced by COVID-19,the international situation has been profoundly adjusted.In order to continue to maintain its hegemonic status,the United States has implemented "long arm jurisdiction" and sanctions under "democracy" and "human rights".In American civil litigation,discovery is very characteristic and important,which requires the parties to fully submit the information related to the litigation or defense before the formal trial.Extraterritorial discovery refers that one parties request the other parties to submit the evidence and information related to the litigation in foreign civil litigation in the United States,which is helpful to the formal court trial.There are differences between the United States and foreign countries in legal culture,litigation ideas and transnational evidence collection methods.In the view of other countries,the extraterritorial discovery in United States may infringe its judicial sovereignty and increase the burden of proof of its parties.Therefore,foreign countries counter it by formulating blocking statutes,the international community coordinates it by formulating conventions,and the United States restricts itself through the balance of national interests.Blocking statute is an effective means for foreign countries to counter the extraterritorial discovery.In a narrow sense,blocking statute refers to the law that prohibits the parties from transmitting information to foreign courts for the purpose of litigation.The restriction of the blocking statute on the extraterritorial discovery in the United States is to prohibit the domestic parties from submitting information to the U.S.court according to the order of discovery in the United States litigation by stipulating the punishment measures for the domestic parties,so as to indirectly restrict the extraterritorial discovery in the United States.In the legal practice of the United States,some courts respect the foreign blocking statute,while some courts believe that the foreign blocking statute will not cause substantive difficulties for the parties to provide evidence.When evaluating the foreign blocking statute,American courts mainly analyze the following elements: the history of the actual implementation of the foreign blocking statute,the national interests safeguarded by the foreign blocking statute,and the substantive difficulties caused by the foreign blocking statute to the parties in submitting evidence.If the foreign blocking statute has a history of actual implementation,fully reflects the national interests and makes it difficult for the parties to provide evidence,it will be recognized and respected by the U.S.courts and allow the parties to refuse the discovery order.The Hague Evidence Convention is a coordinated will reached by the international community to ease the transnational evidence taking conflicts among countries,which reflects the international community’s restrictions on the American extraterritorial discovery.The restrictive effect of the Hague Evidence Convention is that the United States,as a party to the Hague Evidence Convention,should implement the provisions of the Convention in good faith and apply the Convention procedures for taking evidence abroad.At present,different courts in the United States have different attitudes towards the Hague Evidence Convention.Most of the courts followed the opinion of the Air France case heard by the Federal Supreme Court in 1987 and held that the the Hague Evidence Convention is not mandatory in the United States.A few courts allow the first resort to the the Hague Evidence Convention through comity analysis,which respects the priority of the application of the Convention.In American judicial practice,American courts mainly measure whether the the Hague Evidence Convention is an effective alternative to the federal rules of civil procedure,including the efficiency,cost,scope and results of the application of the Convention.In specific cases,the parties fully prove that the adoption of the Hague Convention on evidence collection will not lead to excessive delay in the evidence collection procedure and can obtain sufficient evidence,which will affect the judge’s judgment on the application of the the Hague Evidence Convention.The balance of national interests reflects the self restriction of American courts.The strong opposition of foreign countries to the U.S.extraterritorial discovery system makes the U.S.courts gradually realize that this move will lead to foreign hostility and retaliation.American courts introduced international comity analysis to solve the conflict of discovery,and self restricted the extraterritorial discovery through the balance of national interests.In specific discovery cases,if the U.S.court believes that the discovery will cause serious damage to foreign interests,it will allow the parties to refuse to comply with the order of discovery.Although the United States tends to overestimate its own interests and cannot correctly understand foreign interests in the application of the balance of national interests,some courts will also take a comity way to evaluate conflicting national interests and fully respect foreign interests.The declaration of government interests issued by foreign governments as "Friends of the court" and the diplomatic relations between the United States and foreign countries affect the judgment of American judges on national interests.With the deepening of China’s reform and opening up,Economic and trade exchanges between China and the United States have become increasingly frequent.More and more Chinese parties participate in litigation in the United States and are involved in the conflict of extraterritorial discovery in the United States.China and its parties should actively respond.For the countries,it should take the national interest as the core,clarify the implementation of the blocking statute,establish a hierarchical and classified protection system of data and a reporting and review system for the extraterritorial discovery;Take efficiency as the core,improve the application of the Hague Evidence Convention in China,introduce electronic technologies such as video,and introduce the system of special commissioner;The Chinese government should act as a "friend of the court" to actively voice and resolutely safeguard China’s major interests in the field of data confidentiality and security.For the parties,they should pay attention to the daily compliance management,store the data locally,and carry out hierarchical protection and security evaluation mechanism for the data;When facing the requirements of American discovery,we should actively defend from the aspects of blocking statutes,the Hague Evidence Convention and national interests;After the discovery is required,we shall weigh the losses,report to China’s specialized agencies,conduct partial discovery after safety assessment,or refuse the order of discovery from the United States.