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About the Book
The steep rise in U.S. litigation involving foreign parties or overseas conduct has increased the frequency of the need to collect evidence located outside the United States. Antitrust litigation has been at the forefront of this globalizing trend. In cases involving parties or witnesses located outside the United States, the ability to collect successfully evidence in foreign jurisdictions has become imperative. This newly-revised and expanded edition of Obtaining Discovery Abroad assists those involved in U.S. litigation in understanding the legal and practical steps for bringing evidence from a foreign jurisdiction back to the United States.
One recurring theme in this book is the general hostility of foreign courts to U.S.-style discovery. The first source of this hostility is that most civil law countries use an inquisitorial system of justice characterized by an active judge. In such systems, the judge questions the witnesses and decides which documents to request. The gathering of the evidence is perceived as a sovereign function best left to a judge. The second source of hostility of foreign jurisdictions to U.S. discovery requests is the perceived expansive scope of U.S. discovery. This broad scope, combined with the limited judicial oversight exercised by U.S. judges, is perceived by foreign jurists as fostering "fishing expeditions" by U.S. lawyers eager to build a case and perhaps burden costs on their adversaries for tactical reasons. Regardless of whether this characterization is justified or accurate, the fact that the impression exists in foreign jurisdictions is a complicating factor that must be addressed.
Obtaining Discovery Abroad, Second Edition addresses the various methods of collecting evidence located outside the United States. The first two chapters of the book discuss the specific requirements and limitations that U.S. law imposes on the discovery process when the evidence is located abroad. The third chapter discusses the application of applicable international discovery treaties and conventions to which the United States is a signatory and that may need to be observed. Litigants collecting evidence located abroad also must consider the local law applicable to where the evidence is located. The last nine country-specific chapters of the book address the relevant law and procedures of Belgium, Canada, France, Germany, Italy, Japan, the Netherlands, Switzerland, and the United Kingdom.
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