Those who have read my occasional fulminations about US courts ordering discovery in breach of French blocking statutes will recall that much of the argument turns on whether the French will actually enforce the statute by imposing penalties on those who export data. In an article called Cross-Border Discovery – Federal Judge makes a monkey of the cheese-eaters, I put it this way:
…it is perhaps relevant to consider the likelihood that the French will act to enforce the blocking statute. I say “perhaps relevant” because I am not entirely convinced that the “due respect to the data protection laws of any foreign sovereign” lies in the pragmatic assessment that the French will not react. One can illustrate my point this way: a combination of resource cuts and an attachment to their cosy, warm police stations means that the chances of an English policeman arresting a burglar are pretty slim – the actual statistics are the source of much debate and deliberate, self-serving obfuscation, but a career in burglary is fairly risk-free in the UK. You would not, I think, find a US judge willing to approve of UK burglary on the basis that the police are unlikely to do anything about it.
You may be interested to know that the English High Court has recently considered the same factors, concluding that discovery should be ordered. US lawyers should resist the conclusion that this means that the argument has suddenly become respectable so far as they are concerned. Blocking statutes raise the same issues as the EU-wide data protection and privacy laws, with the difference that they are expressed to be absolute. If all this was a problem before we learned about PRISM, how much worse is the position now?
The case is National Grid Electricity Transmission Plc v ABB Ltd & Ors  EWHC 822 (Ch) (11 April 2013). I am obliged to my friend Browning Marean of DLA Piper US for drawing my attention to it.
The opening sentence leaves us in no doubt as to the central issue:
These applications raise an important question as to the approach the court should take in the light of the so-called French blocking statute, French law No 68-678 of 26 July 1968
This is a complex judgment, full of quotations from earlier cases and the (divided) opinions of the (mainly French) experts whose views are reported. Extracting what seems to be important in sequence will give you a broad idea of the issues. If you want more, you may need some damp towels for your forehead. Read the rest of this entry »