This article focuses on tensions in litigation that involves obligations to produce vs. not to produce documents in different jurisdictions (United Kingdom, France, United Sates, China, and Hong Kong).
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/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. This article explores some recent cases highlighting these tensions.