Disclosure at home & across the pond

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,