This article is provided for educational and informational purposes only. It does not constitute legal, financial, or tax advice, and no attorney-client relationship is formed by reading it. Laws, regulations, official guidance, and related information vary by jurisdiction, change frequently, and may have changed or become outdated since publication. Always verify current information with authoritative sources and consult a qualified professional about your specific circumstances. The author and publisher assume no liability for actions taken based on this information.
Key Facts
- Original subject: ABA Resolution 103 from the 2012 Midyear Meeting concerned foreign data-protection and privacy laws in U.S. civil discovery.
- ABA position: The resolution urged U.S. courts to consider and appropriately respect applicable foreign privacy laws and affected people’s interests when data is sought in civil litigation.
- Legal effect: An ABA resolution states association policy; it does not itself amend U.S. discovery rules or bind a court.
- Existing procedure: The 1970 Hague Evidence Convention offers a Letter of Request mechanism for taking evidence in another contracting state.
- Choice of route: The Supreme Court’s Aérospatiale decision rejected a blanket rule requiring first resort to Hague Convention procedures in every covered discovery dispute.
The archived address 2012mm103 refers to a specific American Bar Association policy, not simply to the Hague Evidence Convention. In February 2012, the ABA House of Delegates adopted Resolution 103 on foreign privacy and data-protection laws in U.S. civil discovery. The ABA’s own policy index preserves the resolution’s wording and meeting identifier. This page restores that subject while explaining the separate discovery framework that made the resolution relevant.
What Resolution 103 asked courts to consider
The resolution urged federal, state, territorial, tribal, and local courts, where possible in the proceedings before them, to consider and respect as appropriate the data-protection and privacy laws of an applicable foreign sovereign. It also referred to the interests of people subject to or benefiting from those laws when data is sought in civil litigation. The words “urged” and “as appropriate” matter. The ABA took a policy position about judicial consideration; it did not enact a new discovery statute or automatically block production whenever information is held abroad.
Contemporaneous legal commentary described the same issue as a conflict between broad U.S. discovery requests and foreign privacy or blocking laws. A court confronting that conflict must apply the governing law and the case’s facts. The ABA recommendation is part of the historical policy discussion, while statutes, rules, treaties, and judicial decisions determine what a particular litigant must do.
Why the Hague Evidence Convention appears in this discussion
The 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters provides a channel for a court in one contracting state to request evidence from authorities in another. Article 1 describes the Letter of Request. Article 2 requires a receiving Central Authority. Article 9 addresses the methods used to execute a request, including a requested special method when compatible with the law of the state executing it. These are mechanisms for cooperation; the treaty text is not itself the text of ABA Resolution 103.
The Convention’s status table gives current participation and declaration information, which can change. The earlier version of this page centered on that treaty and its status snapshot. The treaty remains useful context, but it does not answer by itself how a U.S. court balances a particular discovery request against a foreign privacy law.
The Supreme Court’s Aérospatiale decision
In Société Nationale Industrielle Aérospatiale v. U.S. District Court, 482 U.S. 522 (1987), the Supreme Court held that the Hague Evidence Convention does not require a U.S. court to use treaty procedures before permitting discovery under the Federal Rules in every case involving a foreign party. The Court called for particularized analysis that accounts for the interests of the United States and the foreign state. That decision supplies part of the legal background against which the ABA later urged greater attention to foreign privacy interests.
The 2012 policy does not replace Aérospatiale. Nor does the decision mean foreign law is irrelevant. It means there is no automatic one-route answer: the court must evaluate the actual request, governing procedural rules, relevant foreign law, and the competing interests. A party cannot infer from the ABA resolution alone that a document must be withheld, produced, or collected through a particular treaty channel.
How to read this recovered archive item
The ABA policy index is the strongest available source for the text and identifier of 2012 Midyear Resolution 103. The old ABANow URL now redirects here. Earlier content at this address incorrectly said the original resolution could not be identified and described only the Hague treaty. The restored explanation identifies the resolution directly and keeps the treaty and Supreme Court decision in their proper supporting roles.
For a current cross-border discovery dispute, consult the present federal or state rules, the relevant country’s actual law, the Convention’s current status and declarations, and the court’s orders. Resolution 103 remains a useful record of the ABA’s 2012 policy view; the facts and binding authorities control the current case.
