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

24 Pages Posted: 23 Jul 2013

See all articles by David J. Gerber

David J. Gerber

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: 1991


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. I first analyze 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.

I conclude 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. I view conceptual guidance in this area as a necessity, both to limit adverse international legal, economic, and political consequences and to provide fair and efficient discovery procedures.

Keywords: transnational discovery, judicial discretion, legal systems, international law, comparative law, competition law, antitrust law

JEL Classification: K19, K21, K33, K42

Suggested Citation

Gerber, David J., Obscured Visions: Policy, Power, and Discretion in Transnational Discovery (1991). Vanderbilt Journal of Transnational Law, Vol. 23, No. 993, 1991. Available at SSRN: https://ssrn.com/abstract=2297047

David J. Gerber (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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