Parties Plaintiffs: Individuals, estates, survivors and heirs of individuals killed in 13 separate terrorist attacks. Defendant: Credit Lyonnais, French financial institution
Background Credit Lyonnais maintains accounts for CBSP CBSP describes itself as a charitable organization CBSP is part of HAMAS’s fundrasing and member of Union of Good (a principle fundraiser for HAMAS) HAMAS – Islamic Resistance Movement
Background Plaintiffs allege CBSP supports HAMAS through the supply of financial services Plaintiffs allege that through CSBP, Credit Lyonnais has transferred money to HAMAS controlled entities Plaintiffs claim Credit Lyonnais is civilly liable for damages pursuant to 18U.S.C. § 2333(a) for providing support to a Specially Designated Global Terrorist and providing funds with knowledge the funds would be used to support terrorism
Discovery Dispute – Plaintiffs’ Request 1-30-06 Plaintiffs serve Request for Production of Documents requesting: Account records Communications concerning CBSP Documents re decision to close CBSP’s accounts Documents re Credit Lyonnais’s anti-money laundering efforts Internal documents re account procedures
Discovery Dispute – Defendants’ Objections Plaintiffs’ request is in violation of French law forbidding such disclosure for foreign judicial proceeding. Defendant seeks to follow procedure set forth by Hague Convention Hague Convention – world organization for cross border cooperation on civil and commercial matters, provides internationally agreed upon discovery guidelines Plaintiffs’ request violates French law prohibiting disclosure of information relating to criminal investigation Plaintiffs’ request violates French Bank secrecy obligations
Discovery Dispute - Discussion Credit Lyonnais request a release from secrecy obligations from CBSP and gets no substantive response Credit Lyonnais seeks guidance from French Government no response
Factor Test When determining whether to compel production of documents located in a foreign country from a foreign party consider: Importance of documents to litigation Specificity of the request Whether information originated within the U.S. Available alternative means of getting the information Extent to which noncompliance would undermine interest of the U.S. Competing interest of nations in conflict Hardships resulting from complaince
Factor Test Applied Information requested did not originate in the U.S. Discovery sought is relevant and crucial to plaintiffs’ claims Discovery is narrowly tailored, focused on vital issues, i.e. whether CL knowingly provided support to Specailly Designated Terrorist Organization
Factor Test Applied Availability of alternate methods to secure information: Plaintiffs do not have to use Hague Convention procedures as first or only means of acquiring discovery Plaintiffs may seek an Order compelling discovery for U.S. court
Factor Test Applied Competing interests of nations in conflict: Interest of France and U.S. in fighting terrorism outweigh French interest France and U.S. participate in treaties and task forces serving to dispute terrorist financing France and U.S. are signatories to International Convention for Suppression of Financing of Terrorism providing parties can not refuse request of legal assistance on grounds of bank secrecy
Factor Test Applied Compliance with Plaintiffs’ request will not cause substantial hardship to CL Plaintiffs goals consistent with French governments objectives No evidence CL will be sued in civil court or charged for any crime as a result of complaince
Good Faith CL has acted in good faith CL has made attempts to contact CBSP and French Ministry
Credit Lyonnais Ordered to Produce Documents Factor test weighs in Plaintiffs’ favor Credit Lyonnais ordered to produce all documents responsive to plaintiffs’ Document Request
Update – French Case Law In re Advocat "Christopher X," No. 07-83228 (Cour de Cassation Dec. 12, 2007) French Supreme Court upholds criminal conviction of French attorney attempting to comply with discovery request from U.S. Federal court French attorney fined 10,000 Euros, approx. $15,000 dollars Had this decision been issued before Strauss would there be a different result?
Other Considerations Emails are considered personal data in a majority of foreign nations which protect personal data Attorneys have accepted rather than face criminal charges abroad In Lynondell-Citgo Refining, LP v. Petroleos de Venezuela,S.A., defendant corporation accepted an adverse inference instruction rather than violate Venezuelan blocking statute. 2005 WL 1026461 (S.D.N.Y. 2005).
“International Restrictions on Releasing Personal Information: What Steps Your Company Needs to Consider” CORPORATE COUNSELOR, October 2009, 24 NO. 6 Corp. Couns. 3 Suggestions: Consider data privacy regulations and blocking statutes of foreign jurisdictions into account when determining where electronic information will be stored Involve data protection officers in the host country to provide guidance to parties in seeking protective orders Provide data holders with advance notice of the possibility that their personal data may be processed for litigation; and should have data subjects sign specific, unambiguous informed consents prior to the transfer of any personal data Redact personal information before it is transferred to the United States Communicate with an authority such as Sedona Conference® International Working Group on Electronic Information Management, Discovery and Disclosure, Defense Research Institute, the International Association of Privacy Professionals, and International Chamber of Commerce.
In practice what can you do as the requesting party? Do you adhere to a potentially costly, time consuming and futile discovery process set forth by the Hague Convention? What if the foreign country is not a signatory to the Hague Convention? Do you simply mail discovery requests following U.S. procedure?
If in receipt of a foreign discovery request what do you do? What if the information requested may not be disclosed pursuant to your nations laws? Should you accept sanctions? Is it ethical to abide by a foreign discovery order in contravention of your nations law?