U.S. Law Week reported yesterday on the Heraeus Kulzer v. Biomet case, which we covered on January 25. I’m quoted as saying that the judicial assistance statue was intended to encourage other countries to liberalize their own law regarding discovery, and that “that effort has largely failed.” Germany (where the case arose) is a case in point, I think. Others have made the same observation. (for instance, Cynthia Day Wallace, Extraterritorial Discovery and U.S. Judicial Assistance: Promoting Reciprocity or Exacerbating Judiciary Overload? 37 Int’l Lawyer 1055, 1064 (2003). But as far as I can tell, the refusal of other countries in Europe and elsewhere to bring their discovery practices more closely in line with American practice has not led to calls for repeal of the statute or anything of the sort. Maybe, when we seek to explain the policy of the statute, we should no longer focus on hopes for bringing American-style discovery to the world, but instead on a commitment to the openness of our courts as a rationale for the statute in its own right.
I was also slightly misquoted as saying that “there are only a handful of appellate cases” citing the statute. In fact, I said that there were only a handful of cases in most circuits. Some circuits, in particular the Second Circuit and the Ninth Circuit, have cited the statute more than a few times. But in many circuits the cases are sparse, so I think Judge Posner’s decision will be widely cited.
The citation for the USLW report is 79 U.S.L.W. 2008.