A Comity of Errors: The Rise, Fall, and Return of International Comity in Transnational Discovery

Abstract

No feature of U.S. law has rankled foreign nations more than the supposed “legal imperialism” of discovery requests for information located abroad to be used in U.S. litigation or investigations. China, France, Germany, and Switzerland have threatened the stability of bilateral relations with the United States due to overbroad transnational discovery requests. For three decades, when faced with concerns of international comity in the discovery context, U.S. courts ruled overwhelmingly in favor of discovery through the Federal Rules, rendering international comity a dead concept.Recent case law, however, shows that this paradigm is coming to an end. In a trilogy of cases decided, respectively, by the United States Supreme Court (Daimler), the Second Circuit (Gucci), and the New York State Court of Appeals (Motorola), each court rejected attempts by plaintiffs to subject foreign entities to jurisdiction in the United States or otherwise impose on them overbroad duties, including those in conflict with foreign laws. Prominently relying on “international comity,” each decision limited the reach of U.S. courts and emphasized the need for harmony in the international legal system. These three cases are groundbreaking and should lead to changes in U.S. transnational discovery.This Article analyzes this recent revival of international comity. First, it explores the history of international comity and its interaction with broad U.S. discovery rules. Second, it briefly reviews the Supreme Court case Aerospatiale, which dealt a blow to international comity. Third, this Article analyzes how Daimler, Gucci, and Motorola relied on comity to reach their holdings and argues that international comity has been revived in the context of discovery. Finally, this Article takes a normative approach and argues that U.S. courts should engage in a qualitative limitation on the kinds of U.S. interests that are significant in the transnational discovery context.