The Aérospatiale Dilemma: Why U.S. Courts Ignore Blocking Statutes and What Foreign States Can Do About It
“Blocking statutes” are foreign laws that prohibit the transfer of information to the United States for purposes of litigation. Though many countries have adopted blocking statutes in recent decades, these statutes have met an ignoble fate in the U.S. courts. Today, U.S. judges routinely order foreign litigants to produce discovery in violation of blocking statutes, thereby subjecting them to a Hobson’s choice: flout a U.S. court order and face sanctions, or violate foreign law and risk civil and criminal penalties. In the past decade, U.S. court-ordered blocking-statute violations have increased by 2,500 percent.
This Note presents an empirical analysis of the blocking-statute conflict and provides fresh guidance for foreign states. My study of fifty-six relevant cases reveals that, in determining whether to order litigants to violate blocking statutes, U.S. courts often consider whether foreign states actively enforce them. In at least twenty-three opinions, U.S. courts have found that, because the blocking statute lacked an “enforcement history,” the prospect of prosecution for violating the relevant statute was “slight and speculative.” In all twenty-three opinions, the courts went on to order violations of foreign law. By contrast, in the three opinions where courts found that foreign states actively enforced blocking statutes, courts refused to order their violation.
U.S. courts have been sending a message: blocking statutes will not receive deference unless foreign states enforce them. Foreign states could respond by signaling renewed interest in their blocking statutes and penalizing parties that violate those statutes in response to U.S. court orders. If past decisions are any guide, just a few highly publicized prosecutions would have an appreciable effect on U.S. judges’ reasoning. Blocking statutes might thereby be transformed, in short order, from “paper tigers” to blockbusters.