Caught between a rock and a hard place — cross-border document requests in litigation

Access to documents in cross-border litigation can play a decisive role in the outcome of a dispute. Common law courts worldwide order the disclosure or discovery of all relevant documents (whether helpful or harmful).

However, some jurisdictions have legislation that restricts the provision of documents in support of foreign litigation. Where a court from one jurisdiction requests documents that are situated in a jurisdiction in which these restrictions apply, conflicting legal duties arise. The litigant may be caught between a rock and a hard place. By providing the documents, it may risk criminal prosecution in its home jurisdiction; if it does not, it risks being held in contempt of court in the jurisdiction where the dispute is being heard. Allen & Overy explores some recent cases highlighting these tensions…

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