Under Chapter I of the Convention, letters of request may be sent to the Office of International Cooperation of the French Ministry of Justice in order to allow foreign litigants to avail themselves of the enforcement powers of the French State to collect evidence. If such a letter is sent, it is executed as long as the evidence is valid and cannot be refused on grounds related to the jurisdiction of the courts. If a U.S. party complied with the Hague Convention, it would offer the French side more protection against potentially abusive “fishing expeditions” than if U.S. courts imposed their own evidence-gathering rules and issued an investigation order. Discovery in the UK is a legal process in which evidence is collected and presented as part of a legal dispute or investigation. In today`s modern business world, these documents have gone from filing cabinets to folders on desktops, mobile devices, and servers. The identification and production of all this electronically stored information (ESI) is now commonly referred to as eDiscovery. Although this is only a brief summary of a very large and complex subject, it can be concluded that the discovery in the United States is exhaustive, time-consuming and costly. This is an important phase of any U.S. civil litigation, most of which takes place with little or no legal involvement. What is revealed during the discovery process will inevitably determine how the case will unfold and may even lead to an early resolution before the process even begins.
The parties can force the other to disclose evidence in their possession, and testimony can play a key role. Like “privilege” in England and Wales, the work done by lawyers is not available by disclosure in most states and is protected from discovery, regardless of the subject. Work done in preparation for litigation is also immune if it is done by a lawyer; The work of non-lawyers, on the other hand, would generally be findable. Apart from this narrow exception, parties must disclose a variety of “documents, electronically stored information, and tangible things”[3]. Perhaps the most important difference in approach concerns the presentation of witness statements. While the investigative process in the United States allows lawyers to make radical sworn statements to investigate what a potentially cross-examined witness can say when asked to provide direct evidence (and investigate relevant documents that may exist), in England and Wales there is no trial of testimony and no way to hear a witness for their evidence, until he appears in court. The U.S. discovery is so broad in scope that even after the process is complete, it can impact or force non-U.S. parties to comply with U.S. discovery rules. Foreign parties who enter into contracts with U.S. companies must therefore be clear about the procedures they may need to follow and maintain a clear documentary trail to make an investigation process easier and shorter.
French parties working with U.S. companies should keep in mind the impact that compliance with a U.S. investigation order can have in the event of a conflict. It is important that legal advice is sought on a case-by-case basis to ensure that advance communication is handled with care and with the utmost care. The formal procedure for investigating prosecutions at the federal level is described in article 16 of the Federal Code of Criminal Procedure. [22] Electronic recognition, also known as electronic discovery, involves the recognition of electronic data and records. It is important that the data obtained by eDiscovery is reliable and therefore authorized. [13] The definition of “discovery” in the Act is the exchange of legal information and facts known to a case. Think of discovery as the obtaining and disclosure of each party`s evidence and position in a case so that all parties involved can decide what their best options are – going to trial or negotiating an early settlement. There are a number of tools in the arsenal of preliminary investigations to enable evidence gathering: Ediscovery technology helps to do more than collect, review and create documents for formal discovery requests. Companies in EMEA and APAC without formal eDiscovery rules use the technology in the run-up to litigation or regulatory action, or to redact sensitive information, conduct internal investigations and investigative audits, and manage company data.
French courts, in particular, have resisted the US investigative process, which, unsurprisingly, has seen it as abusive and an interference with the judicial sovereignty of their courts, which is the linchpin of the French legal system. In several countries, blocking laws have been introduced to “impose a sanction on a national for complying with a request for investigation by a foreign court”. [5] Such a law was introduced in France in 1980, prohibiting the collection in writing, orally or otherwise, of “economic information” for use in foreign judicial or administrative proceedings.