Obscured Visions: Policy, Power, and Discretion in Transnational Discovery

This Essay addresses issues involving the discovery of information located outside the United States. Specifically, it deals with some of the problems created by the lack of appropriate limits on United States discovery procedures. Professor Gerber first analyzes the extent of judicial discretion in the United States in matters concerning extraterritorial discovery. The analysis encompasses the underlying legal bases for the exercise of discretion as well as the political and institutional factors that influence the uses of discretion.

Next, the Essay focuses on the international consequences of the virtually unlimited discretion courts in the United States exercise in discovery matter. The analysis indicates that domestic justifications for unlimited discretion in discovery have little relevance in the extraterritorial discovery context. Further, unregulated transnational discovery can result in potentially serious and generally unrecognized harms.

The Author concludes that while a significant measure of judicial discretion is necessary in making discovery decisions, transnational discovery requires a framework of analysis that differs in important respects from the analysis applicable in domestic discovery. Professor Gerber views conceptual guidance in in this area as a necessity, both to limit adverse international legal, economic, and political consequences and to provide fair and efficient discovery procedures.