Geoffrey Sant


United States courts are demanding that businesses break foreign laws at an exponentially increasing rate. A practice that was virtually unheard of only 30 years ago is now so widespread that U.S. courts are ordering foreign lawbreaking in the most trivial discovery matters. When a court receives a discovery request that violates a foreign law, it applies the 5-part Aérospatiale balancing test—a test where 4 of the 5 factors are left to the subjective decisions of the judge. By ordering foreign law breaking, our courts—often biased in favor of United States discovery rules—are encouraging abusive litigation tactics, undermining the rule of law, and causing friction with foreign nations. In this article, I update my original work on court ordered law breaking by analyzing these orders over the last three years, and I conclude that the Supreme Court needs to resolve the circuit split regarding the proper way to handle requests for information that violate foreign laws.