Industry-wide tort litigation, such as tobacco and gun litigation, poses a new problem for extraterritorial discovery. These suits allege conspiracies on the part of the tobacco and gun industries to conceal the dangers of their products from the public. Much of the evidence needed to prove the industries' knowledge is in their possession. These industries are international with companies located in the United Kingdom. Under U.S. discovery law the evidence is discoverable, but such is not the case under British discovery law. Therefore, the evidence and witnesses located in the United Kingdom are outside the grasp of U.S. plaintiffs. The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters establishes procedures for obtaining evidence abroad but does not offer any relief to U.S. plaintiffs seeking evidence in the United Kingdom in industry-wide tort litigation.
This note explores the problems faced by U.S. litigants seeking evidence in the United Kingdom for use in industry-wide tort litigation in the United States. It includes an examination of U.S. and British discovery procedures and compares and contrasts them. It also examines the applicable provisions of the Convention and the Evidence Act of 1975 in the United Kingdom which implemented the Convention in that country. This note identifies the problems experienced by U.S. plaintiffs in tobacco and gun litigation. It suggests a solution to extraterritorial discovery disputes between the United States and the United Kingdom in the form of an amendment to the Evidence Act of 1975 to allow British courts greater discretion in granting U.S. discovery requests in industry-wide tort litigation.
Y. Daphne Coelho-Adam,
Fishing for the Smoking Gun,
33 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol33/iss5/3