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Midyear Meeting

ABA Seeks to Avoid ‘Hobson’s Choice’ in International Discovery

Posted Feb 6, 2012 4:01 PM CDT
By Debra Cassens Weiss

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In a close vote, the ABA House of Delegates has passed a resolution urging U.S. courts to "consider and respect" the data protection and privacy laws of foreign countries.

Resolution 103A says U.S. courts in civil discovery disputes should consider and respect foreign privacy laws "where possible in the context of the proceedings before them." The vote was 227 to 188.

Delegate Michael Byowitz of New York spoke in favor of the resolution. He said it seeks to avoid a “Hobson’s choice” for litigants who must choose between following foreign laws requiring the protection of data and U.S. discovery orders requiring disclosure.

Speaking against the resolution, delegate Lawrence J. Fox of Philadelphia said other countries should be able to limit discovery, but U.S. courts shouldn’t have to be bound by those rules.

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