Foreign Companies Should Fully Understand the US Discovery Process

A Greenberg Traurig article warns foreign companies that are or might become involved in US litigation to understand the challenging nature of the US discovery process, particularly document retention rules, which may be more stringent than those in their home country.

The article briefly summarizes what the US discovery process means in practice and what foreign companies must do to avoid and reduce the risk of sanctions. It reminds them that under the Federal Rules of Civil Procedure and various state laws, “parties have a legal obligation to preserve documents and data if they know or should have known that they represent relevant evidence in pending or reasonably anticipated litigation.” 

The first requirement is to identify all implicated employees and departments and ensure that IT departments suspend any data retention policies that might result in deleting or recycling relevant information. 

While much of the article is devoted to outlining the essentials of a proper legal hold, the writers also note circumstances under which generic strictures may not apply or may be resisted on grounds such as “burden and proportionality,” privacy considerations, contractual or government-imposed mandates, and attorney-client privilege. 

If a company determines that a hold notice includes “any elements found unreasonable, unlawful, inconsistent with domestic or foreign laws, or violative of the privacy rights of third parties,” the writers conclude, the company should consider “appealing, narrowing, quashing,” or otherwise mounting a challenge.