District Courts Show Reluctance To Precluding Non-U.S. Expert Or Consultant Access To Even Highly Confidential Material Subject To U.S. Court Imposed Orders Of Confidentiality/Protective Orders

In complex commercial litigation generally, the questions typically arise concerning who can review or have access to the confidential documents or data of the adversary. In international litigation, those questions also include "where" parties can have such access. If a non-U.S. person or entity breaches a confidentiality order entered by a U.S. court, where can enforcement proceedings take place? If the person or entity is a party, the Court in the action should have the requisite jurisdiction. (See generally the discussion of jurisdiction in our ebook, International Litigation: Topics & Trends.)

It has recently been argued that courts in U.S. litigation should preclude transmission of confidential or highly confidential materials overseas. In two recent decisions, the Courts have rejected the argument. In Eon Corp. IP Holdings, LLC v. Landis+GYR Inc., et al., Civil Action No. 6:11-CV-317 (E.D. Texas 2012), the proposed order of confidentiality would have read:

31. Material designated HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY OR HIGHLY CONFIDENTIAL – SOURCE CODE ("HIGHLY CONFIDENTIAL MATERIAL") shall not be disclosed to any person or entity located outside the United States and HIGHLY CONFIDENTIAL MATERIAL shall not be sent, distributed, or otherwise taken to any location outside the United States. Material designated CONFIDENTIAL shall not be disclosed to any person or entity located outside the United States and shall not be sent, distributed, or otherwise taken to any location outside the United States except that such material designated CONFIDENTIAL may be disclosed to principals and employees of a party outside the United States who a) would have access to such material under the provisions of this Protective Order if located in the United States; b) agree to be subject to the Court's jurisdiction; and c) agree...