Comity

In 2019, I co-authored an article published by the American Bar Association regarding the future of U.S. pretrial discovery involving European Union data following the decision by the United States District Court for the District of Arizona in Salt River Project Agricultural Improvement & Power District v. Trench-France SAS, 303 F. Supp. 3d 1004 (D. Ariz. 2018). The article concluded that Salt River represented a potential watershed moment promoting the application of a foreign mechanism to U.S. discovery overseen by a foreign discovery master under the Hague Convention, as opposed to U.S. courts’ typical deference to domestic discovery practices. Recently, however, I was involved in a matter which demonstrated that state courts may be reluctant to follow Salt River’s lead.

In January, I wrote a blog about the landmark case of United States v. Microsoft Corp. pending before the United States Supreme Court. Following publication of that blog, the Court heard oral arguments on February 27, 2018. On April 17, 2018, the Court dismissed the case as moot after Congress passed an amendment to the SCA and the Government obtained a new warrant pursuant to the amended Act. I have mixed feelings on this one. 

The United States Supreme Court recently granted certiorari in the landmark case of United States v. Microsoft Corp. This matter presents the Court with an opportunity to establish new precedent in the field of international e-discovery. An amicus brief recently filed by some of the country’s leading e-discovery practitioners and professors, including Kilpatrick Townsend’s Global Discovery Counsel, Craig D. Cannon, urges the Court to use this occasion to provide further guidance as to the appropriate considerations of international comity that must be weighed when faced with a cross-border discovery dispute.