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15 July 2020 / David J Stute , Alexis N Wansac
Issue: 7895 / Categories: Features , Profession , Disclosure
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Disclosure at home & across the pond

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US discovery for foreign proceedings: a playbook for UK practitioners? David J Stute & Alexis N Wansac report

In brief

  • Contextualising US discovery: an avenue since 1948.
  • A new weapon in the arsenal for UK litigators?
  • No silver bullet: no clever solution for those seeking to resist US discovery.

US disclosure obligations, known in the US civil litigation system as ‘discovery’, have been well-publicised as extensive measures, often with significant costs attached, that in most cases exceed those under the UK Civil Procedure Rules. For many British firms, the notion of being pulled into US discovery is a worrying notion, and yet many are unaware of the dangers and opportunities recent US circuit court proceedings entail. How can the savvy litigator use the long arm of US discovery to their advantage, or defend against the same?

It is part and parcel of contemporary commercial practice to utilise forum-selection clauses stipulating that disputes between contracting parties are to be litigated, for example,

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MOVERS & SHAKERS

Sackers—Zak Ullah

Sackers—Zak Ullah

Sackers welcomes new associate

Christy Davies—Birmingham Law Society

Christy Davies—Birmingham Law Society

Ward Hadaway lawyer joins Birmingham Law Society Council

Ellisons—Stephanie Westwood & Anisa Khan

Ellisons—Stephanie Westwood & Anisa Khan

Ellisons expands Chelmsford commercial litigation team with two appointments

NEWS
Businesses incorporating open-source software into commercial products could face obligations to disclose valuable source code, with AI-assisted development making licensing risks harder to track
Careless client checks do not automatically make a solicitor dishonest, but deliberately avoiding confirmation of suspected wrongdoing can cross the line
Construction workers injured in comparable accidents can face sharply different routes to compensation on opposite sides of the Atlantic
Victims of undue influence may have more options than simply unwinding a tainted transaction, with courts able to order profits accounts, compensation and, exceptionally, severance
Disabled people could lose vital safeguards following the Supreme Court’s reversal of the Cheshire West test for deprivation of liberty, two barristers warn
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