The EU’s General Data Protection Regulation (GDPR) has been raised in a petition for certiorari before the US Supreme Court, apparently for the first time since the GDPR entered into application in 2018. A party in Vesuvius USA Corp. v. Phillips has filed a petition for certiorari in a GDPR-related discovery dispute. Of course, since this is a petition for certiorari, the Court has not decided it will hear this GDPR issue (and as discussed below, there are reasons it may well decline to adjudicate this appeal). Even so, this case marks what appears to be the first time the GDPR has been raised in a certiorari petition to the Court as an outcome-determinative issue.
The Vesuvius appellants are asking the Supreme Court to review a previously settled question under a new GDPR standard: Do conflicts with EU law prohibit parties to US litigation from using standard US discovery requests to obtain evidence located in Europe, and instead to rely exclusively on the Hague Evidence Convention? Since the Supreme Court’s 1987 decision in Société Nationale Industrielle Aéospatiale v. US District Court (“Aerospatiale”), the issue has been settled. Resort to the Hague Evidence Convention is generally not mandatory to obtain evidence located abroad, even if conflicts with foreign law may exist. Instead, the parties elect whether to request foreign discovery via standard US requests or by Hague Convention procedures. If a party makes a standard US discovery request and the other opposes it on grounds it raises conflicts with foreign law, courts conduct a discretionary comity analysis mandated by Aerospatiale, balancing US versus foreign interests, to determine whether to require the parties to resort to Hague Convention procedures.
In Vesuvius, the plaintiff (Phillips) was a Vesuvius employee who was terminated. He filed various employment-law claims against Vesuvius in Ohio state court. During discovery, Phillips requested that Vesuvius produce the personnel files of six European Vesuvius executives. Vesuvius refused, claiming the production of nonparty personnel files would violate the GDPR, and requesting that Phillips seek the files via Hague procedures. Phillips instead moved to compel production.
The trial court granted Phillips’s motion, ordering Vesuvius to produce the files in a journal entry. Vesuvius appealed to the Ohio appellate courts, which affirmed the order under an Aerospatiale analysis (while permitting appropriate redactions to the personnel files). The Ohio Supreme Court denied certiorari.
Vesuvius now asks the Supreme Court to revisit the issue of whether US courts can permit standard US discovery procedures to obtain evidence located in Europe. Vesuvius argues the issue is due for review because, when Aerospatiale was decided, the Supreme Court was primarily attempting to stop foreign blocking statutes from undermining US discovery. Vesuvius argues that Aerospatiale is thus inapplicable to GDPR discovery issues, because GDPR is not a blocking statute. And even if Aerospatiale continues to be applied to GDPR-related discovery disputes, Vesuvius argues it is ripe for an “update” because (a) the number of European businesses operating in the US has drastically increased since 1987, and (b) the GDPR imposes potentially enormous fines for production of documents in US discovery.
While certainly of interest that the GDPR is a potential live issue before the US’s highest court, it seems unlikely Court will grant certiorari and actually hear this case. Simply as a general matter of percentages, the Court receives multiple thousands of certiorari petitions each year, and grants only a small percentage of them. Grants of certiorari are often based on unique issues raised by a case, which are not immediately apparent in Vesuvius. Case law relating to foreign discovery issues has remained consistent over the past decades. Foreign discovery issues have not created a circuit split or similar fragmentation issue for the Court to address. Moreover, if the Aerospatiale decision was appropriate for foreign blocking statutes – which can impose severe and at times criminal penalties for participating in US discovery – one imagines the Court able to find it remains appropriate for GDPR.
A copy of Vesuvius’s petition for certiorari can be downloaded here.