Petition for Writ of Certiorari — Vesuvius USA Corporation, et al., Petitioners v. Royston Phillips

Supreme Court briefMar 11, 2021

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No. ________

IN THE

Supreme Court of the United States

VESUVIUS USA CORPORATION AND CHRISTOPHER YOUNG,

Petitioners,

ROYSTON PHILLIPS,

Respondent.

On Petition for a Writ of Certiorari to the Court of

Appeals of Ohio, Eighth Appellate District

PETITION FOR A WRIT OF CERTIORARI

CRAIG D. CANNON

JAMES J. HEFFERAN, JR.

KILPATRICK TOWNSEND &

STOCKTON LLP

1001 West Fourth Street

Winston-Salem, NC 27101

(336) 607-7300

ADAM H. CHARNES

Counsel of Record

KILPATRICK TOWNSEND &

STOCKTON LLP

2001 Ross Avenue

Suite 4400

Dallas, TX 75201

(214) 922-7106

acharnes

@kilpatricktownsend.com

MARLA N. PRESLEY

JACKSON LEWIS P.C.

1001 Liberty Avenue

Suite 1000

Pittsburgh, PA 15222

(412) 338-5148

Attorneys for Petitioners

QUESTION PRESENTED

In Société Nationale Industrielle Aérospatiale v.

United States District Court for the Southern District

of Iowa, 482 U.S. 522 (1987), this Court addressed

how courts should apply comity principles to

accommodate the broad discovery obligations imposed

on parties in litigation in the United States with

foreign laws that restrict production of information

and documents located in foreign nations. When this

Court decided Aérospatiale, the primary foreign-law

obstacle to U.S. discovery was “blocking statutes,”

which were laws with one purpose: prohibiting

compliance with American discovery obligations.

More recently, foreign countries have adopted laws—

like the European Union’s General Data Privacy

Regulation—aimed at protecting their citizens’

privacy. The GDPR restricts the ability of companies

with operations in the EU to comply with American

discovery obligations, and can impose massive

penalties for violation. However, the procedures of the

Hague Convention remain available to obtain needed

discovery in compliance with the GDPR. Such foreign

privacy laws, motivated by substantive policy

considerations, raise significantly different questions

than mere blocking statutes, as this Court recognized

in Aérospatiale.

The question presented is:

When compliance with discovery obligations in an

American court is prohibited by the General Data

Privacy Regulation, whether principles of comity

require the American court to direct the discovering

party to seek the requested information and

documents through the Hague Convention, rather

than through court discovery procedures.

PARTIES TO THE PROCEEDINGS

Petitioners Vesuvius USA Corporation and

Christopher Young were appellants below and

defendants in the trial court.

Respondent Royston Phillips was appellee below

and plaintiff in the trial court

iii

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT

Petitioner Vesuvius USA Corporation is a wholly

owned, indirect subsidiary of Vesuvius plc, which is

publicly traded.

RELATED PROCEEDINGS

Court of Common Pleas, Cuyahoga County, Ohio

Royston Phillips v. Vesuvius USA Corporation, et

al., No. CV-18-904574 (July 29, 2019) (journal

entry granting motion to compel discovery)

Court of Appeals of Ohio, Eighth Appellate District,

Cuyahoga County

Royston Phillips v. Vesuvius USA Corporation, et

al., No. 108888 (June 11, 2020) (journal entry and

opinion)

Supreme Court of Ohio

Royston Phillips v. Vesuvius USA Corporation, et

al., No. 2020-0910 (Oct. 13, 2020)

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT ............................................................ iii

RELATED PROCEEDINGS ......................................iv

TABLE OF CONTENTS ............................................. v

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR A WRIT OF CERTIORARI .............1

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

PROVISIONS INVOLVED .........................................1

STATEMENT OF THE CASE ....................................3

A. The European Union’s General Data Privacy

Regulation. ...........................................................3

B. Phillips’ employment with Vesuvius. ..................5

C. The litigation. .......................................................6

REASONS FOR GRANTING THE PETITION .........9

This Court addressed foreign laws restricting

discovery in U.S. courts in Aérospatiale, but

an update is required. ........................................11

A. In the context of a French blocking

statute, Aérospatiale adopts a comity

analysis. .......................................................11

B. Developments since Aérospatiale. ..............15

II. This Court should correct the court of

appeals’ misapplication of Aérospatiale. ...........18

CONCLUSION ..........................................................23

APPENDIX

APPENDIX A – ORDER OF THE

SUPREME COURT OF OHIO, FILED

OCTOBER 13, 2020 ............................................. 1a

APPENDIX B – JOURNAL ENTRY AND

OPINION OF THE COURT OF APPEALS

OF OHIO, EIGHTH APPELLATE

DISTRICT, COUNTY OF CUYAHOGA,

DATED JUNE 11, 2020 ....................................... 2a

APPENDIX C – JOURNAL ENTRY OF

THE COURT OF COMMON PLEAS OF

CUYAHOGA COUNTY, OHIO, DATED

JULY 29, 2019.................................................... 17a

vii

TABLE OF AUTHORITIES

Page

Cases

AnywhereCommerce, Inc. v. Ingenico, Inc.,

No. 19-cv-11457-IT, 2020 WL 5947735 (D.

Mass. Aug. 31, 2020)..............................................17

Byrd v. U.S. Xpress, Inc.,

2014-Ohio-5733, 26 N.E.3d 858 (Ct. App.

2014) .........................................................................9

Disciplinary Counsel v. O’Neill,

75 Ohio St. 3d 1479, 664 N.E.2d 532 (1996) ...........9

F. Hoffmann-La Roche Ltd. v. Empagran S.A.,

542 U.S. 155 (2004)................................................20

Finjan, Inc. v. Zscaler, Inc.,

No. 17-cv-06946-JST (KAW), 2019 WL

618554 (N.D. Cal. Feb. 14, 2019) ..........................17

Giorgi Glob. Holdings, Inc. v. Smulski,

No. 17-4416, 2020 WL 2571177 (E.D. Pa.

May 21, 2020).........................................................17

Herbert v. Lando,

441 U.S. 153 (1979)..................................................9

Hilton v. Guyot,

159 U.S. 113 (1895)................................................13

In re Activision Blizzard, Inc.,

86 A.3d 531 (Del. Ch. 2014) ...................................16

viii

In re Application Pursuant to 28 U.S.C. § 1782

of Okean B.V. & Logistic Sol. Int’l to Take

Discovery of Chadbourne & Parke LLP,

No. 12 Misc. 104(PAE), 2013 WL 4744817

(S.D.N.Y. Sept. 4, 2013) .........................................16

In re Mercedes-Benz Emissions Litig.,

No. 16-cv-881 (KM) (ESK), 2020 WL 487288

(D.N.J. Jan. 30, 2020) ............................................17

In re Payment Card Interchange Fee & Merch.

Disc. Antitrust Litig.,

No. 05-MD-1720 (JG)(JO), 2010 WL

3420517 (E.D.N.Y. Aug. 27, 2010) ........................10

Laydon v. Mizuho Bank, Ltd.,

183 F. Supp. 3d 409 (S.D.N.Y. 2016) ....................19

Ohio Consumers’ Counsel v. Pub. Util.

Comm’n,

111 Ohio St. 3d 300, 856 N.E.2d 213 (2006) ...........9

Phillips v. Vesuvius,

160 Ohio St. 3d 1420, 154 N.E.3d 110 (2020) .....1, 8

Republic of Argentina v. NML Capital, Ltd.,

573 U.S. 134 (2014)................................................13

Richmark Corp. v. Timber Falling

Consultants,

959 F.2d 1468 (9th Cir. 1992).......................... 20, 21

Royal & Sun All. Ins. Co. of Can. v. Century

Int’l Arms, Inc.,

466 F.3d 88 (2d Cir. 2006) .....................................13

Salt River Project Agric. Improvement &

Power Dist. v. Trench Fr. SAS,

303 F. Supp. 3d 1004 (D. Ariz. 2018) ....................17

Société Nationale Industrielle Aérospatiale v.

United States District Court for the

Southern District of Iowa,

482 U.S. 522 (1987)........................................ passim

Statutes

Charter of Fundamental Rights of the

European Union, art. 8, 2012 O.J. (C 326)

391, 397, available at https://eurlex.europa.eu/legalcontent/EN/TXT/PDF/?uri=OJ:C:2012:326:F

ULL&from=EN .................................................. 3, 16

Data Privacy Act 2018,

https://www.legislation.gov.uk/ukpga/2018/1

2/contents ...............................................................10

28 U.S.C. § 1257(a) ......................................................1

Regulations

General Data Protection Regulation,

Regulation (EU) 2016/679 of the European

Parliament and of the Council of 27 April

2016 on the Protection of Natural Persons

with Regard to the Processing of Personal

Data and on the Free Movement of Such

Data, and Repealing Directive 95/46/EC,

2016 O.J. (L 119)......................................................3

art. 4(1) .....................................................................4

art. 4(2) .....................................................................4

art. 6 .........................................................................4

art. 6(3) ........................................................... 4, 7, 21

art. 48 ................................................................. 7, 21

art. 49 ...................................................................4, 5

art. 82 .......................................................................5

art. 83 .......................................................................5

recital 1 ..................................................................16

Other Authorities

Communication from the Commission to the

European Parliament and the Council,

Data Protection as a Pillar of Citizens’

Empowerment and the EU’s Approach to

the Digital Transition—Two Years of

Application of the General Data Protection

Regulation 1, COM(2020) 264 final (June 24,

2020), https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:52020D

C0264&from=EN .....................................................3

Convention on the Taking of Evidence Abroad

in Civil or Commercial Matters, Oct. 7,

1972, 23 U.S.T. 2555, 847 U.N.T.S. 231 .............1, 7

Samantha Cutler,

Note, The Face-Off Between Data Privacy

and Discovery: Why U.S. Courts Should

Respect EU Data Privacy Law When

Considering the Production of Protected

Information,

59 B.C. L. Rev. 1513 (2018) ...................................22

Fed. Judicial Ctr.,

Discovery in International Civil Litigation:

A Guide for Judges (2015) .....................................15

Kristen A. Knapp,

Enforcement of US Electronic Discovery Law

Against Foreign Companies: Should US

Courts Give Effect to the EU Data Protection

Directive?,

10 Rich. J. Global L. & Bus. 111 (2010) ................16

Kurt H. Nadelmann,

Reprisals Against American Judgments?, 65

Harv. L. Rev. 1184 (1952)......................................20

Restatement (Fourth) of the Foreign Relations

Law of the United States (2018) ..................... 19, 20

Restatement (Third) of Foreign Relations Law

of the United States (1987) ............................. 15, 17

Restatement (Third) of Foreign Relations Law

of the United States (Tentative Draft No. 7,

1986) (approved May 14, 1986) .............................14

Geoffrey Sant,

Court-Ordered Law Breaking: U.S. Courts

Increasingly Order the Violation of Foreign

Law, 81 Brook. L. Rev. 181 (2015) ........................22

Geoffrey Sant,

Courts Increasingly Demand that Businesses

Break the Law, 52 Akron L. Rev. 121 (2018) ........21

M. Szmigiera,

Foreign Direct Investment (FDI) in the

United States from 2000 to 2018, Statista

(Sept. 2, 2019),

https://www.statista.com/statistics/188870/fo

reign-direct-investment-in-the-unitedstates-since-1990/ ..................................................15

W. Gregory Voss,

European Union Data Privacy Law Reform:

General Data Protection Regulation, Privacy

Shield, and the Right to Delisting,

72 Bus. Law. 221 (2016) ..........................................4

Ben Wolford,

What Is GDPR, the EU’s New Data

Protection Law, GDPR.eu,

https://gdpr.eu/what-is-gdpr/ (last visited

Mar. 8, 2021) ........................................................3, 4

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully request a writ of certiorari

to review the judgment of the Court of Appeals of

Ohio, Eighth Appellate District.

OPINIONS BELOW

The July 29, 2019, journal entry by the Court of

Common Pleas of Cuyahoga County, Ohio, granting

respondent’s motion to compel, is unpublished and is

reprinted in the Appendix to the Petition (“App.”) at

App. 17a. The June 11, 2020, journal entry and

opinion of the Court of Appeals of Ohio, Eighth

Appellate District, is published at 2020 WL 3118892,

2020-Ohio-3285 and is reprinted at App. 2a–16a. The

Supreme Court of Ohio’s denial of permission to

appeal on, October 13, 2020 is reported at 160 Ohio

St. 3d 1420, 154 N.E.3d 110 (2020), and is reprinted

at App. 1a.

JURISDICTION

The judgment of the Court of Appeals of Ohio,

Eighth Appellate District, affirming the order

granting the motion to compel, was entered on June

11, 2020. The Supreme Court of Ohio declined to

accept the case for review in an order entered on

October 13, 2020. Pursuant to this Court’s order of

March 19, 2020, 589 U.S. 569 (2020), the deadline for

this petition has been extended to 150 days after

October 13, 2020, which is March 12, 2021. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a).

PROVISIONS INVOLVED

The Convention on the Taking of Evidence Abroad

in Civil or Commercial Matters (“Hague Convention”),

Oct. 7, 1972, 23 U.S.T. 2555, 847 U.N.T.S. 231,

provides in relevant part:

Article 17. In a civil or commercial

matter, a person duly appointed as a

commissioner for the purpose may,

without compulsion, take evidence in the

territory of a Contracting State in aid of

proceedings commenced in the courts of

another Contracting State if—

a) a competent authority designated by

the State where the evidence is to be

taken has given its permission either

generally or in the particular case; and

b) he complies with the conditions

which the competent authority has

specified in the permission.

A Contracting State may declare that

evidence may be taken under this Article

without its prior permission.

Article 18. A Contracting State may

declare that a diplomatic officer,

consular

agent

commissioner

authorised to take evidence under

Articles 15, 16 or 17, may apply to the

competent authority designated by the

declaring

State

for

appropriate

assistance to obtain the evidence by

compulsion. The declaration may

contain such conditions as the declaring

State may see fit to impose.

the

authority

grants

the

application it shall apply any measures

of compulsion which are appropriate and

are prescribed by its law for use in

internal proceedings.

STATEMENT OF THE CASE

A. The European Union’s

Privacy Regulation.

General

Data

In 2018, the European Union adopted the General

Data Protection Regulation (“GDPR”).1 The GDPR “is

the toughest privacy and security law in the world”2

and “is at the heart of the EU framework

guaranteeing the fundamental right to data

protection.”3 This policy is implemented through

sweeping safeguards for its citizens’ individual

1 Regulation (EU) 2016/679 of the European Parliament and of

the Council of 27 April 2016 on the Protection of Natural Persons

with Regard to the Processing of Personal Data and on the Free

Movement of Such Data, and Repealing Directive 95/46/EC

(General Data Protection Regulation), 2016 O.J. (L 119) 1,

http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32016R0679.

2 Ben Wolford, What Is GDPR, the EU’s New Data Protection

Law, GDPR.eu, https://gdpr.eu/what-is-gdpr/ (last visited Mar. 8,

2021).

Communication from the Commission to the European

Parliament and the Council, Data Protection as a Pillar of

Citizens’ Empowerment and the EU’s Approach to the Digital

Transition—Two Years of Application of the General Data

Protection Regulation 1, COM(2020) 264 final (June 24, 2020),

https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:52020DC0264&from=EN;

see Charter of Fundamental Rights of the European Union, art.

8, 2012 O.J. (C 326) 391, 397, available at https://eurlex.europa.eu/legalcontent/EN/TXT/PDF/?uri=OJ:C:2012:326:FULL&from=EN.

privacy.4 The GDPR applies to “organizations

anywhere, so long as they target or collect data related

to people in the EU.”5

The GDPR applies to all “personal data,” which

“means any information relating to an identified or

identifiable natural person.” GDPR art. 4(1). Personal

data includes a wide range of information, such as a

name, home address, email address, driver’s license or

passport number, phone number, and other

information specific to the “physical, physiological,

genetic, mental, economic, cultural or social identity

of that natural person.” Id. Essentially everything in

an employee’s personnel file is personal data under

the GDPR.

Unless a specific exception applies, the statute

bars “processing” of personal data (id. art. 6), where

processing includes “collection, . . . retrieval, . . . use,

. . . [and] dissemination” of such data (id. art. 4(2)).

None of the exceptions to the ban on processing

permits compliance with U.S. court discovery requests

or court orders related to such requests.6 Sanctions for

4 For an overview of the GDPR, see W. Gregory Voss, European

Union Data Privacy Law Reform: General Data Protection

Regulation, Privacy Shield, and the Right to Delisting, 72 Bus.

Law. 221, 221–30 (2016).

5 Wolford, supra note 2.

See GDPR art. 6. The GDPR authorizes processing when

“necessary for compliance with a legal obligation to which the

controller is subject,” but this exception is limited to legal

obligations “laid down by . . . [European] Union law; or . . .

Member State law.” Id. art. 6(3). U.S. discovery obligations,

therefore, are excluded from the “legal obligation” exception.

Article 49’s exceptions permitting “a transfer . . . of personal data

violation of the GDPR include compensation to any

person who has suffered damage (id. art. 82) and

administrative fines of up to 20 million euros or four

percent of global revenue, whichever is larger (id. art.

83).

B. Phillips’ employment with Vesuvius.

Respondent

Royston

Phillips

began

his

employment with the group of petitioner Vesuvius

USA Corporation in 2008 when Cookson Group plc

(the predecessor of Vesuvius plc) acquired his thenemployer Foseco. In 2013, Phillips took a two-year

position with Vesuvius in China. Due to a delay in

finding his replacement, Vesuvius asked Phillips to

remain in his position for another year. Phillips

agreed but also requested a plan for his return to the

United States, with a stated intention to retire soon

thereafter. When Vesuvius discussed Phillips’ next

position, Phillips stated that he did not want to be

placed outside of the United States, nor did he want

to travel frequently. So when Vesuvius offered

Phillips the position of Global Development Director,

Phillips turned it down since it would be located in

Europe and would require frequent travel.

Given Phillips’ refusal to remain outside the

United States or travel frequently, Vesuvius created a

one-year position specifically for him in Cleveland in

recognition of his long-tenured service with Vesuvius

and stated intention to retire shortly after his return

to the United States. Phillips assumed this position in

March 2017. Phillips openly admitted that, during his

time in the position created for him, he “lack[ed]

to a third country” can apply only after such data is first lawfully

processed. Id. art. 49.

motivation” and that he was willing to negotiate an

exit package.

In May 2017, petitioner Christopher Young, a

United States-based Vesuvius employee, met with

Phillips to inform him that his position would not

extend past 2018. Young offered Phillips a severance

package consisting of 12 months’ severance pay, 18

months of health insurance, and ownership of his

company car. Phillips rejected Vesuvius’ offer, stating

that he would not accept less than three years’

severance, and for the first time raised allegations of

age discrimination.

In March 2018, Young again met with Phillips to

discuss his interest in a severance package since his

position would be concluding soon. Notwithstanding

Phillips’ contention that Vesuvius retaliated against

him due to his age discrimination complaints,

Vesuvius offered Phillips the same severance package

as before he raised his unfounded allegations. Phillips

again responded that anything less than three years’

severance pay was unacceptable.

On May 7, 2018, Young met with Phillips to inform

him that his position with Vesuvius would end on May

31, 2018. Phillips asked for an extension of his

termination date to June 30, 2018, to provide him with

additional time to consult a lawyer. Vesuvius agreed

to this extension request. Several additional offers

and counteroffers were exchanged, but Phillips

ultimately did not sign a separation agreement.

C. The litigation.

Phillips filed his complaint in the Cuyahoga

County Court of Common Pleas on September 28,

2018, alleging various age discrimination and

retaliation claims. On May 16, 2019, Phillips filed a

motion to compel discovery seeking the production of

the personnel files of six individuals. Phillips has not

disputed the fact that these individuals and their

personnel files are located in Europe. The individuals

in question are current and former executives of

Vesuvius affiliates based in the United Kingdom,

Belgium, Germany, and the Netherlands. Neither the

individuals nor their employers are parties to this

case. Vesuvius argued in opposition to the motion that

production of the personnel files would violate the

GDPR, exposing Vesuvius and its affiliates to the risk

of substantial fines and/or other enforcement

measures and civil litigation.

Although specifically permitted by the GDPR,7

Phillips declined to seek the information pursuant to

Chapter II of the Hague Convention,8 insisting on

production of the personnel files in violation of the

GDPR. On July 29, 2019, the trial court made a onesentence journal entry granting Phillips’ motion to

compel without any discussion or resolution of the

privacy concerns and violations of European law

raised in Vesuvius’ briefing. App. 17a. Placed in the

untenable position of either complying with the trial

court’s order and exposing itself to fines and other

liabilities under European law for violation of the

GDPR, or complying with the GDPR and exposing

itself to sanctions by Ohio courts, Vesuvius appealed

7 See GDPR arts. 6(3), 48.

Convention on the Taking of Evidence Abroad in Civil or

Commercial Matters, Oct. 7, 1972, 23 U.S.T. 2555, 847 U.N.T.S.

231.

to the Court of Appeals for the Eighth Appellate

District on August 12, 2019.

In an opinion dated June 11, 2020, the court of

appeals affirmed in part the trial court’s order

granting Phillips’ motion to compel. App. 15a. The

court of appeals purported to apply the balancing test

established in Société Nationale Industrielle

Aérospatiale v. United States District Court for the

Southern District of Iowa, 482 U.S. 522 (1987), to

weigh the competing interests and determine whether

the GDPR excused non-compliance with the trial

court’s discovery order. App. 11a–15a. However, the

court’s superficial and erroneous approach misapplied

the relevant factors. Contrary to Aérospatiale’s

guidance, the court approved a broad fishing

expedition into irrelevant aspects of the personnel

files; ignored the undisputed fact that all requested

documents are located in the EU; discarded the

availability of the Hague Convention; and failed

entirely to consider “the extent to which . . .

compliance with the [discovery] request would

undermine important interests” of the relevant

European nations. Aérospatiale, 482 U.S. at 544 n.28.

The court, however, modified the trial court’s order by

requiring it to conduct an in camera review of the

personnel files and redact “irrelevant and confidential

material that would be otherwise undiscoverable.”

App. 15a.

Vesuvius sought review in the Supreme Court of

Ohio. But that court denied review, with one justice

dissenting. App. 1a; 160 Ohio St. 3d 1420, 154 N.E.3d

110 (2020).

REASONS FOR GRANTING THE PETITION

American courts traditionally permit very broad

pretrial discovery. Indeed, discovery rules are

“accorded a broad and liberal treatment to effect their

purpose of adequately informing the litigants in civil

trials.” Herbert v. Lando, 441 U.S. 153, 177 (1979); see

also Ohio Consumers’ Counsel v. Pub. Util. Comm’n,

111 Ohio St. 3d 300, 320, 856 N.E.2d 213, 234 (2006)

(explaining that Ohio’s discovery rules have “been

liberally construed to allow for broad discovery of any

unprivileged matter relevant to the subject matter of

the pending proceeding.”).9 “Discovery is undoubtedly

an intrusive process, and those subject to discovery

are often forced to turn over a wide variety of

information that they would prefer to keep private.”

Byrd v. U.S. Xpress, Inc., 2014-Ohio-5733, ¶ 36, 26

N.E.3d 858, 866 (Ct. App. 2014).

Sometimes—and with increasing frequency—the

documents and information demanded in discovery in

American courts are located in other countries. In

such circumstances, the party seeking the discovery

may face not just generalized foreign hostility to broad

and intrusive American discovery obligations, but also

foreign laws that specifically prohibit compliance with

such obligations. These foreign laws put parties

receiving such discovery requests—like Vesuvius

here—in a quandary: they must choose between

producing the requested information in violation of

Under Ohio’s civil procedure rules, “a party may obtain

discovery regarding non-privileged information relevant to the

claim or defense of a proceeding. This includes determining the

existence of documents and the identity of persons having

knowledge of any discoverable matter.” Disciplinary Counsel v.

O’Neill, 75 Ohio St. 3d 1479, 664 N.E.2d 532 (1996).

foreign law, potentially subjecting themselves to

severe penalties abroad, or they must flout their

American discovery obligations, potentially subjecting

themselves to contempt findings and other sanctions

in the American case.

As discussed below, such obstructive foreign laws

are nothing new—but the GDPR (and similar national

privacy laws10) has greatly expanded the potential for

conflict between American discovery obligations and

foreign legal restrictions.

Unfortunately, because they are interlocutory,

cross-border discovery disputes rarely receive

appellate review. See Aérospatiale, 482 U.S. at 554

(Blackmun, J., dissenting) (noting “the limited

appellate review of interlocutory discovery decisions,

which prevents any effective case-by-case correction of

erroneous discovery decisions” (footnote omitted)); In

re Payment Card Interchange Fee & Merch. Disc.

Antitrust Litig., No. 05-MD-1720 (JG)(JO), 2010 WL

3420517, at *7 (E.D.N.Y. Aug. 27, 2010) (noting that

the “relative dearth of appellate decisions makes it

more difficult to identify a coherent body of doctrine”).

The lack of appeals hampers development of a robust

jurisprudence. This case presents an unusual

opportunity for this Court to reassess Aérospatiale

and provide updated guidance on how a court should

10 After withdrawal of the United Kingdom from the European

Union on January 31, 2020, the privacy law applicable to

information within the U.K. is the Data Privacy Act 2018, c. 12,

https://www.legislation.gov.uk/ukpga/2018/12/contents.

References to the GDPR in this petition include national privacy

laws such as the Data Privacy Act 2018.

weigh domestic and foreign interests in determining

whether to permit cross-border discovery.

I. This

Court

addressed

foreign

laws

restricting discovery in U.S. courts in

Aérospatiale, but an update is required.

A. In the context of a French blocking

statute, Aérospatiale adopts a comity

analysis.

This Court addressed the impact of foreign laws on

discovery in American courts in Aérospatiale in 1987.

That case involved consolidated lawsuits against two

companies owned by the government of France for

personal injuries resulting from the crash of an

airplane built and sold by those companies. During

discovery, the defendants sought a protective order

because the requested documents and information

were located in France. 482 U.S. at 524–25. They

contended that, under French penal law, they were

prohibited from responding to discovery requests

served in American judicial proceedings; instead, they

could respond only to requests made pursuant to the

Hague Convention. Id. at 525–26. Specifically, this

French law, known as a “blocking statute,” provided

as follows:

Subject to treaties or international

agreements . . . it is prohibited for any

party to request, seek or disclose, in

writing, orally or otherwise, economic,

commercial, industrial, financial or

technical documents or information

leading to the constitution of evidence

with a view to foreign judicial or

administrative

proceedings

connection therewith.

Id. at 526 n.6.

This Court first rejected the argument that, under

federal law, the Hague Convention was the exclusive

procedure “for obtaining documents and information

located within the territory of a foreign signatory.” Id.

at 529; see id. at 529–41. The Hague Convention, the

Court held, “did not deprive the District Court of the

jurisdiction it otherwise possessed to order a foreign

national party before it to produce evidence physically

located within a signatory nation.” Id. at 539–40. The

Court explained that “such statutes do not deprive an

American court of the power to order a party subject

to its jurisdiction to produce evidence even though the

act of production may violate that statute.” Id. at 544

n.29. Indeed, the Court emphasized that “American

courts are not required to adhere blindly to the

directives of such a statute.”11

Next, the Court rejected the argument that a party

must make “first resort to Convention procedures

whenever discovery is sought from a foreign litigant.”

Id. at 542; see id. at 541–44. No such obligation could

be “inferred from the adoption of the Convention

11 The Court was particularly exercised by the fact that French

law appeared to prescribe a rule of decision for federal district

judges: “the language of the statute, if taken literally, would

appear to represent an extraordinary exercise of legislative

jurisdiction by the Republic of France over a United States

district judge, forbidding him or her to order any discovery from

a party of French nationality, even simple requests for

admissions or interrogatories that the party could respond to on

the basis of personal knowledge.” Aérospatiale, 482 U.S. at 544

n.29.

itself” and it was not “described in the text of that

document.” Id. at 543.

But those holdings were not the most influential

aspects of the Court’s opinion. Instead, the passage

that has become most important is the Court’s

instruction that courts should undertake a comity

analysis whenever civil discovery conflicts with

foreign law, in order to determine whether foreign law

limits a party’s U.S. discovery obligations. Id. at 543–

44; see also Republic of Argentina v. NML Capital,

Ltd., 573 U.S. 134, 146 n.6 (2014) (recognizing that a

court “may appropriately consider comity interests

and the burden that the discovery might cause to the

foreign state”). “Comity,” the Court explained, “refers

to the spirit of cooperation in which a domestic

tribunal approaches the resolution of cases touching

the laws and interests of other sovereign states.”

Aérospatiale, 482 U.S. at 543 n.27. International

comity is “the recognition which one nation allows

within its territory to the legislative, executive or

judicial acts of another nation, having due regard both

to international duty and convenience, and to the

rights of its own citizens or of other persons who are

under the protection of its laws.” Id. (quoting Hilton v.

Guyot, 159 U.S. 113, 164 (1895)). The “principles upon

which international comity is based [include] the

proper respect for litigation in and the courts of a

sovereign nation, fairness to litigants, and judicial

efficiency.” Royal & Sun All. Ins. Co. of Can. v.

Century Int’l Arms, Inc., 466 F.3d 88, 94 (2d Cir.

2006).

Borrowing from the Restatement of Foreign

Relations Law of the United States, the Court

explained that “these factors are relevant to any

comity analysis”:

“(1) the importance to the . . . litigation

of the documents or other information

requested;

“(2) the degree of specificity of the

request;

“(3) whether the information originated

in the United States;

“(4) the availability of alternative means

of securing the information; and

“(5) the extent to which noncompliance

with the request would undermine

important interests of the United States,

or compliance with the request would

undermine important interests of the

state where the information is located.”

482 U.S. at 544 n.28 (quoting the Restatement (Third)

of Foreign Relations Law of the United States

§ 437(1)(c) (Tentative Draft No. 7, 1986) (approved

May 14, 1986)) (omission in the original).

Finally, Aérospatiale instructed American courts

to “exercise special vigilance to protect foreign

litigants from the danger that unnecessary, or unduly

burdensome, discovery may place them in a

disadvantageous position.” Id. at 546. “Judicial

supervision of discovery should always seek to

minimize its costs and inconvenience and to prevent

improper uses of discovery requests. When it is

necessary to seek evidence abroad, however, the

district court must supervise pretrial proceedings

particularly closely to prevent discovery abuses.” Id.

B. Developments since Aérospatiale.

In the 30 years since Aérospatiale, there have been

two important developments. First, since 1987, the

number of foreign companies doing business in the

United States has increased dramatically, more than

tripling since the year 2000 alone.12 This development

means that conflict between American discovery

obligations and foreign laws is becoming more

common.

Second, in 1987 the primary obstacle to discovery

of documents located in other countries was foreign

“blocking” statutes. “Many foreign countries find U.S.style discovery to be problematic because of its

breadth and scope,” and some have “enact[ed]

blocking statutes that restrict or prohibit the transfer

of documents or information for use in foreign

proceedings.” Fed. Judicial Ctr., Discovery in

International Civil Litigation: A Guide for Judges 26

(2015); see also Restatement (Third) of Foreign

Relations Law of the United States § 442 reporters’

note 4 (1987) (Restatement). Blocking statutes are

intended “to prevent domestic individuals or

corporations from having to comply with U.S.

discovery production requests” and generally prohibit

“the disclosure, copying, inspection, or removal of

documents located in the territory of the enacting

12 M. Szmigiera, Foreign Direct Investment (FDI) in the United

States from 2000 to 2019, Statista (Sept. 2, 2019),

https://www.statista.com/statistics/188870/foreign-directinvestment-in-the-united-states-since-1990/.

state in compliance

authorities.”13

with

orders

foreign

But the GDPR is not a blocking statute. Unlike a

blocking statute, the GDPR “represent[s] a ‘sovereign

interest[] in nondisclosure of specific kinds of

material.’” In re Activision Blizzard, Inc., 86 A.3d 531,

550 (Del. Ch. 2014) (quoting Aérospatiale, 482 U.S. at

544 n.29). And “in contrast” to a blocking statute,

privacy laws such as the GDPR “exist as a result of

the considered decision of [foreign governments] to

enact strong . . . personal data privacy protections.

They do not exist—and there is no basis to claim that

they exist—for the purpose of impeding enforcement

of United States laws.” In re Application Pursuant to

28 U.S.C. § 1782 of Okean B.V. & Logistic Sol. Int’l to

Take Discovery of Chadbourne & Parke LLP, No. 12

Misc. 104(PAE), 2013 WL 4744817, at *3 (S.D.N.Y.

Sept. 4, 2013).

The GDPR is motivated by a strong, substantive

policy—privacy. Indeed, data protection is considered

a fundamental human right in the EU and is

incorporated in the Charter of Fundamental Rights of

the European Union. See GDPR recital 1; Charter of

Fundamental Rights of the European Union, supra,

art. 8. The GDPR provides substantive rights to EU

citizens and residents, gives them control of their

personal data, and restricts the ability of data

“controllers” and “processors” (including employers) to

13 Kristen A. Knapp, Enforcement of U.S. Electronic Discovery

Law Against Foreign Companies: Should U.S. Courts Give Effect

to the EU Data Protection Directive?, 10 Rich. J. Glob. L. & Bus.

111, 122 (2010) (citation omitted).

use and disclose personal data—including the

contents of employees’ own personnel files.

Because the GDPR is not a blocking statute, courts

err when they unthinkingly apply Aérospatiale to

enforce American discovery obligations with respect

to documents or information protected by the GDPR.

As this Court explained in Aérospatiale, blocking

statutes “need not be given the same deference by

courts of the United States as substantive rules of law

at variance with the law of the United States.” 482

U.S. at 544 n.29 (quoting Restatement § 437,

reporters’ note 5).

Nonetheless, American courts—in addition to the

courts below—have almost always ordered production

of documents and information subject to the GDPR.

See, e.g., AnywhereCommerce, Inc. v. Ingenico, Inc.,

No. 19-cv-11457-IT, 2020 WL 5947735 (D. Mass. Aug.

31, 2020); Giorgi Glob. Holdings, Inc. v. Smulski, No.

17-4416, 2020 WL 2571177 (E.D. Pa. May 21, 2020);

In re Mercedes-Benz Emissions Litig., No. 16-cv-881

(KM) (ESK), 2020 WL 487288, at *5–8 (D.N.J. Jan. 30,

2020); Finjan, Inc. v. Zscaler, Inc., No. 17-cv-06946JST (KAW), 2019 WL 618554 (N.D. Cal. Feb. 14,

2019). But cf. Salt River Project Agric. Improvement &

Power Dist. v. Trench Fr. SAS, 303 F. Supp. 3d 1004

(D. Ariz. 2018) (requiring the use of the Hague

Convention procedures in light of the French blocking

statute). This case presents an ideal vehicle for the

Court to provide updated guidance in light of the sea

changes represented by the GDPR and the

increasingly common transnational conduct of

business.

II. This Court should correct the court of

appeals’ misapplication of Aérospatiale.

A. The court of appeals’ superficial decision

grapples with none of the important issues presented

by Aérospatiale or the change in context represented

by the GDPR.

The court of appeals “[a]ssum[ed] without deciding

that the personnel files and its [sic] contents fall

would [sic] under the GDPR.” App. 13a. But the court

held that “the [Aérospatiale] factors weigh in favor of

disclosure.” Id. Under the first factor, the importance

of the documents to the litigation, the court stated

that “[p]ersonnel records are basic discovery in

employment-related cases” and are therefore

“relevant.” Id. The court also found that the request

was “not overbroad,” the second factor, because it

sought “the personnel records of only seven

individuals related to Phillips’s employment and

termination with Vesuvius.” Id.

Third, the court found it “unclear from the record”

whether the information requested “originated in the

United States.” It thus held that the third factor “does

not weigh in any party’s favor.” Id. at 13a–14a.

Fourth, the court found no “alternative means of

securing the information,” rejecting Vesuvius’

argument that Phillips should be required to seek the

requested documents through the Hague Convention.

Id. at 14a. The court held that “requiring Phillips to

undergo another avenue of seeking the requested

documents, which have been requested for over a

year, is not a viable alternative to the liberal discovery

rules.” Id. Fifth, the court described the last factor as

“the extent to which noncompliance would undermine

important interests of the United States.” Id. It found

that this factor “weighs in favor of discovery” because

“Ohio has a clear public policy prohibiting age

discrimination and unlawful retaliation, and the

information contained in the personnel files . . . is

essentially a mandated disclosure.” Id.

This analysis misstates both Aérospatiale’s comity

factors and the record of the case.

Initially, the court of appeals focused solely on the

interests of the United States in discussing the fifth

factor. It completely failed to address “the extent to

which . . . compliance with the [discovery] request

would undermine important interests” of the foreign

state. Aérospatiale, 482 U.S. at 544 n.28; see

Restatement (Fourth) of the Foreign Relations Law of

the United States § 426 reporter’s note 2 (2018) (“For

an order to produce information to be reasonable, it

should take into account principles of international

comity regarding the legitimate interests of foreign

sovereigns with respect to persons and information

within their jurisdiction.”). Comity is by definition a

two-way street. Aérospatiale, 482 U.S. at 544 n.29

(“The lesson of comity is that neither the discovery

order nor the blocking statute can have the same

omnipresent effect that it would have in a world of

only one sovereign.”). Moreover, the court of appeals

ignored Aérospatiale’s admonition that trial courts

must “exercise special vigilance to protect foreign

litigants from the danger that unnecessary, or unduly

burdensome, discovery may place them in a

disadvantageous position.” Id. at 546. These represent

significant errors, because “[t]he fifth factor—the

balancing of national interests—is the most

important, as it directly addresses the relations

between sovereign nations.” Laydon v. Mizuho Bank,

Ltd., 183 F. Supp. 3d 409, 422 (S.D.N.Y. 2016); see also

Richmark Corp. v. Timber Falling Consultants, 959

F.2d 1468, 1476 (9th Cir. 1992) (“the most important

factor”).

Indeed, the court of appeals failed even to assess

adequately the full panoply of United States interests.

The United States and Ohio have an interest in

upholding the rule of law, in mitigating and

eliminating international conflict, and in maintaining

friendly relations with other countries. See F.

Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S.

155, 164–65 (2004) (“[A]ccount[ing for] the legitimate

sovereign interests of other nations . . . . helps the

potentially conflicting laws of different nations work

together in harmony—a harmony particularly needed

in today’s highly interdependent commercial world.”);

Restatement § 442 cmt. c (“the court or agency should

take into account . . . the long-term interests of the

United States generally in international cooperation

in law enforcement and judicial assistance, in joint

approach to problems of common concern, in giving

effect to formal or informal international agreements,

and in orderly international relations”). These

sovereign American interests facilitate cross-border

trade, travel, and cooperation—which benefit the

people of Ohio and the United States. Failure of

American courts to adequately respect foreign laws

invites retaliation from other countries, undermining

U.S. interests. See Kurt H. Nadelmann, Reprisals

Against American Judgments?, 65 Harv. L. Rev. 1184

(1952). Yet the court of appeals did not factor any of

these considerations into its analysis.

The court of appeals also misapplied the other

Aérospatiale factors. While some documents in

personnel files may constitute “basic discovery” in

employment cases, App. 13a, here Phillips sought,

and the trial court ordered Vesuvius to produce,

essentially the entire personnel files of senior

executives—including much information (such as

compensation data) completely irrelevant to the case.

Such a wide-ranging fishing expedition cannot be

“importan[t] to the . . . litigation” and it was certainly

not “specific[].” Aérospatiale, 482 U.S. at 544 n.28. The

first and second factors, therefore, did not support the

trial court’s holding. Further, the court bizarrely held,

with respect to the third factor, that it was “unclear

from the record” whether the personnel files were

located in the United States. App. 13a. But, in fact, it

is undisputed that the documents are located in the

European Union and are subject to the GDPR.

And, finally, the court ignored the fact that

Phillips could obtain much of the same information

via the Hague Convention, which is a process the

GDPR approves, see GDPR arts. 6(3), 48. “If the

information sought can easily be obtained elsewhere,

there is little or no reason to require a party to violate

foreign law.” Richmark, 959 F.2d at 1475. Indeed, if

Phillips had used the Convention’s process from the

outset, he likely would already have the information

he has sought.14 Rather than order Vesuvius to

comply with the discovery requests, therefore, the

court should have required Phillips to seek the

See Geoffrey Sant, Courts Increasingly Demand that

Businesses Break the Law, 52 Akron L. Rev. 121, 143 (2018)

(explaining that the Hague Convention process is a faster means

of obtaining documents abroad than protracted litigation over

the propriety of foreign discovery in U.S. courts).

information through the established procedures in the

Hague Convention.

B. Unfortunately, the court of appeals’ decision is

indicative of a broader trend. As anticipated by the

Aérospatiale dissent, see 482 U.S. at 547–48, 553

(Blackmun, J. dissenting), the comity analysis has

been overwhelmingly applied with pro-forum biases.

See Geoffrey Sant, Court-Ordered Law Breaking: U.S.

Courts Increasingly Order the Violation of Foreign

Law, 81 Brook. L. Rev. 181, 191–92 (2015). Because

“[t]he balancing test . . . permits courts to easily

prioritize U.S. interests over foreign interests, . . .

[t]he legacy of Aerospatiale . . . was a rise in expansive

U.S. discovery, with international comity falling by

the wayside.” Samantha Cutler, Note, The Face-Off

Between Data Privacy and Discovery: Why U.S. Courts

Should Respect EU Data Privacy Law When

Considering the Production of Protected Information,

59 B.C. L. Rev. 1513, 1529 (2018).

This case presents the Court with the opportunity

to update the comity framework for analyzing the

competing interests in the increasingly common crossborder discovery disputes. This issue is of critical

importance to the numerous international companies

conducting business in both the United States and

Europe, as well as their employees who are citizens of

the EU, whose privacy rights could be breached in

such cross-border discovery disputes. This Court

should grant the petition to correct the court of

appeals’ improper application of the comity analysis

and to provide the necessary guidance for properly

weighing the interests of an American court in civil

discovery and the substantive interests and rights of

the EU and its citizens reflected in the GDPR.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition.

Respectfully submitted.

CRAIG D. CANNON

JAMES J. HEFFERAN, JR.

KILPATRICK TOWNSEND &

STOCKTON LLP

1001 West Fourth Street

Winston-Salem, NC 27101

(336) 607-7300

MARLA N. PRESLEY

JACKSON LEWIS P.C.

Park Center Plaza I

1001 Liberty Avenue

Suite 1000

Pittsburgh, PA 15222

(412) 338-5148

ADAM H. CHARNES

Counsel of Record

KILPATRICK TOWNSEND &

STOCKTON LLP

2001 Ross Avenue

Suite 4400

Dallas, TX 75201

(214) 922-7106

acharnes

@kilpatricktownsend.com

Counsel for Petitioners

APPENDIX

Appendixof

A the supreme

Appendix A — order

court of ohio, filed october 13, 2020

THE SUPREME COURT OF OHIO

Case No. 2020-0910

ROYSTON PHILLIPS,

VESUVIUS USA CORPORATION, et al.

ENTRY

Upon consideration of the jurisdictional memoranda

filed in this case, the court declines to accept jurisdiction

of the appeal pursuant to S. Ct. Prac. R. 7.08(B)(4).

(Cuyahoga County Court of Appeals; No. 108888)

/s/

Maureen O’Connor

Chief Justice

AppendixENTRY

Appendix b — JOURNAL

AND OPINION

of the COURT OF APPEALS OF OHIO, EIGHTH

APPELLATE DISTRICT, COUNTY

OF CUYAHOGA, DATED JUNE 11, 2020

Court of Appeals of Ohio

Eighth Appellate District

County of Cuyahoga

No. 108888

ROYSTON PHILLIPS,

Plaintiff-Appellee,

VESUVIUS USA CORPORATION, et al.,

Defendants-Appellants.

Civil Appeal from the Cuyahoga County

Court of Common Pleas

Case No. CV-18-904574

JUDGMENT: AFFIRMED IN PART, MODIFIED

IN PART, AND REMANDED

RELEASED AND JOURNALIZED: June 11, 2020

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, J.:

Appendix B

{¶1} Defendants-appellants, Vesuv ius U.S.A .

Corporation (“ Vesuvius”) and Christopher Young

(collectively “appellants”), appeal from the trial court’s

decision that granted the motion to compel discovery filed

by plaintiff-appellee, Royston Phillips (“Phillips”). For

the reasons that follow, we affirm, but modify the trial

court’s decision by ordering that the trial court conduct

an in camera inspection of the personnel files and redact

those documents contained therein that would be deemed

irrelevant or confidential under the law.

{¶2} Phillips worked for Vesuvius and its predecessor

entity for nearly 40 years before he was terminated.

In 2018, Phillips filed a complaint against appellants

alleging various causes of action including claims of age

discrimination and retaliation. In December 2018, Phillips

served appellants with his first set of interrogatories,

requests for production of documents, and requests for

admissions. Relevant to this appeal, those requests sought

the personnel records of seven individuals purportedly

relevant to the Phillips’s claims. See Request for

Production of Documents No. 10.

{¶3} In May 2019, Phillips filed a motion to compel

discovery after appellants objected to the requested

discovery information. Specific to the issue on appeal,

appellants objected because (1) the personnel files are not

relevant nor likely to lead to the discovery of admissible

evidence; (2) appellants do not have possession, custody,

or control over the requested personnel files; and (3)

the European Union’s (“EU”) General Data Protection

Regulation (“GDPR”) and other foreign laws preclude the

Appendix B

production of these files. See Phillips’s Motion to Compel,

filed May 16, 2019.

{¶4} In their brief in opposition, appellants contended

that the production of the requested documents and

information is prohibited by the GDPR and cannot be

produced without the consent of the individuals whose

personnel files were requested. Appellants maintained

that they were willing to provide relevant information

regarding the requested employees, but only if Phillips

“agree[d] to a protective order regarding the use and

dissemination of said information and agree[d] to

indemnify [appellants] should any levies or fines be

assessed against them for producing the information.” See

Appellants’ Brief in Opposition to the Motion to Compel,

filed May 23, 2019. Phillips agreed to a protective order,

but not indemnification.

{¶5} The trial court granted Phillips’s motion to

compel, ordering

Plaintiff’s motion to compel discovery * * * is

granted. Defendants shall provide responses to

all outstanding discovery requests by 8/12/2019.

Court declines to award attorneys [sic] fees at

this time.

{¶6} Appellants now appeal, raising two

assignments

Appendix B

I. Final Appealable Order

{¶7} As an initial matter, Phillips contends that

the order from which appellants appeal is not final or

appealable and thus, this court does not have jurisdiction

to consider the appeal.

{¶8}Appellate courts can only “review and affirm,

modify, or reverse judgments or final orders.” Ohio

Constitution, Article IV, Section 3(B)(2). Before this court

can exercise jurisdiction over an appeal, the order of the

lower court must meet the finality requirements of R.C.

2505.02. CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d

299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 10. Appellants

contend that the order in this case is final under R.C.

2505.02(B)(4).

{¶9}Pursuant to R.C. 2505.02(B)(4), an order that

grants or denies a provisional remedy is a final order if (a)

“[t]he order in effect determines the action with respect

to the provisional remedy and prevents a judgment in the

action in favor of the appealing party with respect to the

provisional remedy,” and (b) “[t]he appealing party would

not be afforded a meaningful or effective remedy by an

appeal following final judgment as to all proceedings,

issues, claims, and parties in the action.”

{¶10}Discovery orders are generally interlocutory

orders that are neither final nor appealable. Walters v.

Enrichment Ctr. of Wishing Well, Inc., 78 Ohio St.3d

118, 120-121, 1997-Ohio-232, 676 N.E.2d 890 (1997).

But a proceeding for discovery of a privileged matter

Appendix B

is a “provisional remedy” within the meaning of R.C.

2505.02(A)(3). Smith v. Chen, 141 Ohio St.3d 1461,

2015-Ohio-370, 24 N.E.3d 1180, ¶ 5. The protection

against discovery of matters identified as “privileged”

in Civ.R. 26(B)(1) is limited to privileges derived from

a specific constitutional or statutory provision. State ex

rel. Grandview Hosp. & Med. Ctr. v. Gorman, 51 Ohio

St.3d 94, 95, 554 N.E.2d 1297 (1990), citing In re Story,

159 Ohio St. 144, 147, 111 N.E.2d 385 (1953). The Ohio

Supreme Court has recognized, however, that “other

discovery protections that do not involve common-law,

constitutional, or statutory guarantees of confidentiality

* * * may require a showing under R.C. 2505.02(B)(4)(b)

beyond the mere statement that the matter is privileged.”

Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016Ohio-8000, 89 N.E.3d 536, ¶ 2.

{¶11} Phillips contends that appellants have failed

to withstand their burden of demonstrating that the

personnel files are privileged, thus satisfying R.C.

2505.02(B)(4)(a) that the order involves a provisional

remedy. Phillips relies on appellants’ praecipe, claiming

that it is a “mere statement” and does not provide any

information or evidence to support a finding that the

requested discovery falls under the GDPR or that the

production of such information violates the GDPR.

Appellants’ praecipe provides:

This case falls under R.C. 2505.02(B)(4) as the

trial court’s granting of [Phillips’s] motion to

compel in effect determines the action with

respect to the production of the personnel files

Appendix B

at issue and prevents a judgment in Appellants’

favor on this issue. Appellants would not be

afforded a meaningful or effective remedy by an

appeal following final judgment as Appellants’

production of these files violates European

law and carries high potential fines against

[Appellants] for unlawful production.

{¶12}However, a party is not required to conclusively

prove the existence of privileged matters as a precondition

to appellate review under R.C. 2505.02(B)(4). Byrd v.

U.S. Xpress, Inc., 2014-Ohio-5733, 26 N.E.3d 858, ¶ 12

(1st Dist.). “To impose such a requirement would force an

appellate court ‘to decide the merits of an appeal in order

to decide whether it has the power to hear and decide the

merits of an appeal.’” Id., quoting Bennett v. Martin, 186

Ohio App.3d 412, 2009-Ohio-6195, 928 N.E.2d 763, ¶ 35

(10th Dist.). Instead, a party need only make a “colorable

claim” that materials subject to discovery are privileged

in order to qualify as a provisional remedy. Id.; see also

Burnham at ¶ 3, 29 (defendant “plausibly alleged” and

made a “colorable claim” that the incident report was

governed by the attorney-client privilege thus satisfying

its burden that the report contains privilege information).

{¶13} In this case, we find that because appellants

make a colorable claim that at least some of the

information for which they seek protection is privileged

or contains confidential information, the order qualifies

as a provisional remedy.

Appendix B

{¶14} Next, we must consider whether the order

determines the action with respect to the provisional

remedy and prevents a judgment in favor of appellants

regarding the provisional remedy. See R.C. 2505.02(B)

(4)(a). In its response to Phillips’s motion to compel,

appellants claimed that they should not be ordered to

produce personnel files of European citizens because the

files contained confidential information whose release

would violate the GDPR. Because the effect of the trial

court’s order is that confidential or protected information

will be disclosed, the order has determined the action

with respect to the provisional remedy. “Any order

compelling the production of privileged or protected

materials certainly satisfies R.C. 2505.02(B)(4)(a) because

it would be impossible to later obtain a judgment denying

the motion to compel disclosure if the party has already

disclosed the materials.” Burnham, 151 Ohio St.3d 356,

2016-Ohio-8000, 89 N.E.3d 536, at ¶ 21.

{¶15} Although we recognize that the trial court did

not explain why it was granting the motion to compel or

why the documents were not privileged, we can glean

from the record that the asserted protections under the

GDPR were rejected because this was the only discovery

privilege protection appellants sought. See Burnham at

¶ 27 (recognizing that although the trial court’s order did

not specifically state why it was compelling the production

of the report, the Supreme Court was able to determine

from the briefing “that the attorney-client privilege had

been rejected and that it was the only remaining discovery

protection being sought”). Ideally, “a trial court should

explain why a motion to compel production has been

Appendix B

granted. In that way, a reviewing court can determine

the pertinent issues and whether the requirements of R.C.

2505.02(B)(4)(a) and (b) are satisfied.” Id. at ¶ 28.

{¶16} Finally, we must consider whether appellants

would be able to obtain meaningful relief by an appeal

following the entry of final judgment. See R.C. 2505.02(B)

(4)(b). Appellants seek to prevent the disclosure of

alleged privileged and protected information. Because

the trial court’s order compels the production of material

allegedly protected under a foreign law that may contain

confidential and otherwise undiscoverable information,

the order satisfies R.C. 2505.02(B)(4)(b) because there

is no effective remedy other than an immediate appeal.

Burnham at ¶ 25.

{¶17} Accordingly, we find the trial court’s order is final

and appealable but only insofar as it implicitly determined

that the personnel files were not privileged or that they

did not breach a protected interest in confidentiality. We

decline to address appellants’ argument that this court

should exercise pendent jurisdiction over its additional

objection that it does not have “possession, custody or

control” over the requested documents. That justification

would not be grounds to make an otherwise interlocutory

appeal immediately appealable under R.C. 2505.02(B)(4).

Accordingly, we summarily disregard appellants’ first

assignment of error, which contends that the trial court

improperly granted Phillips’s motion to compel because

the information “is not within Vesuvius’s custody and

control.” This appeal is limited to the privileged nature

of those personnel files.

10a

Appendix B

II. Motion to Compel

{¶18} In their second assignment of error, appellants

contend that “the trial court’s decision improperly granted

Phillips’s motion to compel the production of six European

citizens’ personnel files and residential addresses without

any safeguards in place.” They frame the issue as:

The trial court granted Phillips’ motion to

compel the production of six European citizens’

personnel files and residential addresses

without any safeguards in place, despite the

fact that the discovery requests are overbroad,

seek largely irrelevant information, and

would require [appellants] and members of

its group to violate the European citizens’

privacy rights, the European Union’s (“EU’s”)

General Data Protection Regulation (“GDPR”),

and national legislation in the EU countries

at issue, exposing them to high fines, other

enforcement measures, and/or civil litigation,

notwithstanding the availability of alternative

methods for requesting European documents

and information in discovery under Chapter II

of the Hague Convention.

{¶19}Ordinarily, a discovery dispute is reviewed

under an abuse-of-discretion standard. Tracy v. Merrell

Dow Pharmaceuticals, Inc., 58 Ohio St.3d 147, 151-152,

569 N.E.2d 875 (1991). However, whether the information

sought in discovery is confidential and privileged “is a

question of law that is reviewed de novo.” Burnham v.

11a

Appendix B

Cleveland Clinic, 2017-Ohio-1277, 88 N.E.3d 523, ¶ 8

(8th Dist.), citing Castlebrook, Ltd. v. Dayton Properties

Ltd. Partnership, 78 Ohio App.3d 340, 604 N.E.2d 808

(2d Dist.1992); Med. Mut. of Ohio v. Schlotterer, 122 Ohio

St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.

{¶20}The GDPR concerns the data protection and

privacy of all EU citizens and regulates the transfer of

EU citizens’ personal data outside of EU member states,

such as the transfer to the U.S. In re Mercedes-Benz

Emissions Litigation, D.N.J. Civil Action No. 16-cv-881

(KM) (ESK), 2020 U.S. Dist. LEXIS 15967, *5 (Jan. 30,

2020). The GDPR broadly defines personal data as “any

information relating to an identified or identifiable natural

person.” Id., quoting GDPR Article 4(1). “This broad

definition of personal data inherently includes information

like an individual’s name and job title, information that

is generally considered benign in U.S. litigation and

* * * produced in discovery pursuant to the [rules of civil

procedure].” Id.

{¶21} In a recent decision in the Northern District of

California, the court concluded that the GDRP will not act

as an absolute bar to domestic discovery. Finjan, Inc. v.

Zscaler, Inc., N.D.Cal. No. 17-cv-06946-JST (KAW), 2019

U.S. Dist. LEXIS 24570, (Feb. 14, 2019). “In general, a

foreign country’s statute precluding disclosure of evidence

‘do[es] not deprive an American court of the power to order

a party subject to its jurisdiction to produce evidence even

though the act of production may violate that statute.’”

Finjan at *3, quoting Societe Nationale Industrielle

Aerospatiale v. United States Dist. Court for S. Dist., 482

12a

Appendix B

U.S. 522, 544, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987), fn.

29. Aerospatiale endorsed the balancing test contained in

the Restatement of the Law 3d, Foreign Relations Law,

Section 442(1)(c)(1987) in determining whether the foreign

statute excuses noncompliance with the discovery order.

Richmark Corp. v. Timber Falling Consultants, 959 F.2d

1468, 1475 (9th Cir.1992); see also EnQuip Technologies

Group, Inc. v. Tycon Technoglass, S.R.L., 2d Dist. Greene

Nos. 2009 CA 42 and 2009 CA 47, 2010-Ohio-28, ¶ 88.

Courts should consider:

(1) the importance of the documents or other

information requested to the litigation; (2) the

degree of specificity of the request; (3) whether

the information originated in the United States;

(4) the availability of alternative means of

securing the information; and (5) the extent

to which noncompliance would undermine

important interests of the United States.

Finjan at *3, citing Richmark Corp, at 1475. These

factors are not exclusive; courts may also consider “the

extent and the nature of the hardship that inconsistent

enforcement would impose upon the person,” as well as

“the extent to which enforcement by action of either state

can reasonably be expected to achieve compliance with

the rule prescribed by the state.” Id.

{¶22}As a threshold matter, in determining whether

the compelled discovery at issue is protected from

disclosure under the GDPR, the party relying on foreign

law has the burden of showing such law bars production.

13a

Appendix B

Phoenix Process Equip. Co. v. Capital Equip. & Trading

Corp., W.D. Ky No. 16CV-00024, 2019 U.S. Dist. LEXIS

44390, *30 (Mar. 18, 2019).

{¶23} Assuming without deciding that the personnel

files and its contents fall would under the GDPR, we find

that the factors weigh in favor disclosure.1 The first factor

— the importance of the documents or other information

requested to the litigation — weighs in favor of discovery.

Personnel records are basic discovery in employmentrelated cases. Accordingly, they are relevant and pertain

to Phillips’s claims of age discrimination and retaliation.

{¶24} The second factor, the degree of specificity

of the request, also weighs in favor of disclosure.

Phillips’s request seeks the personnel records of only

seven individuals related to Phillips’s employment and

termination with Vesuvius. This request is not overbroad.

{¶25} The third factor — whether the information

originated in the United States — is unclear from the

record. Although Phillips contends that it is likely that

some of the information contained in the personnel files

originated in the United States, appellants claim that

because the personnel files are those of current and former

1. We note that courts throughout the United States, including

a state court in Ohio, have repeatedly balanced the Aerospatiale

factors in favor of discovery production when deciding whether

foreign laws inhibit discovery in cases originating in the United

States. See, e.g., Finjan; Phoenix Process; EnQuip Techs. Group

(discussing Directive 95/46/EC of the European Parliament and of

the Council of 24 October 1995).

14a

Appendix B

executives of Vesuvius’s affiliates in the United Kingdom,

Belgium, and the Netherlands, the records originated and

are maintained outside of the United States. This factor

does not weigh in any party’s favor because the record

is insufficient for this court to make such determination.

{¶26} With respect to the fourth factor — the

availability of alternative means of securing the

information — Phillips maintains that it has no other

means of obtaining this information whereas appellants

claim that Phillips can seek production through the

procedures set forth under Chapter II of the Hague

Convention. Based on the record before this court,

requiring Phillips to undergo another avenue of seeking

the requested documents, which have been requested

for over a year, is not a viable alternative to the liberal

discovery rules of Civ.R. 26. Accordingly, this factor

weighs in favor of discovery.

{¶27} Finally, the fifth factor — the extent to which

noncompliance would undermine important interests of

the United States — weighs in favor of discovery. Ohio has

a clear public policy prohibiting age discrimination and

unlawful retaliation, and the information contained in the

personnel files, e.g., location information of witnesses, is

essentially a mandated disclosure under Civ.R. 26.

{¶28} Moreover, and much like in Finjan, appellants

have failed to produce evidence that the disclosure of the

personnel files would lead to hardship or an enforcement

action from an EU data protection supervisory authority

for breach of the GDPR. See Finjan at *10. Accordingly,

15a

Appendix B

after reviewing the factors, we find they weigh in favor

of discovery production.

{¶29} Notwithstanding our conclusion, this court

recognizes that documentation and information contained

in the personnel files may exist that would otherwise be

undiscoverable as irrelevant or confidential. See Dubson

v. Montefiore Homes, 8th Dist. Cuyahoga No. 97104, 2012Ohio-2384, ¶ 20-21; Howell v. Park E. Care & Rehab.,

8th Dist. Cuyahoga No. 106041, 2018-Ohio-2054, ¶ 34-36

(personnel files may contain confidential information;

redaction is the proper remedy).

III. Conclusion

{¶30} Accordingly, we find that the trial court did

not abuse its discretion in granting Phillips’s motion to

compel. However, we find that the trial court should have

conducted an in camera inspection to review whether

any of the information contained in the files is irrelevant

and confidential material that would be otherwise

undiscoverable. The assignment of error is therefore

sustained, in part.

{¶31} Judgment affirmed in part, modified in part,

and remanded. The trial court is ordered to conduct an

in camera review of the personnel files and redact those

documents that would be deemed confidential or otherwise

undiscoverable under the law.

It is ordered that parties share equally in the costs

herein taxed.

16a

Appendix B

The court finds there were reasonable grounds for

this appeal.

It is ordered that a special mandate be sent to said

court to carry this judgment into execution.

A certified copy of this entry shall constitute the

mandate pursuant to Rule 27 of the Rules of Appellate

Procedure.

____________________________

K ATHLEEN A NN K EOUGH,

JUDGE

EILEEN T. GALLAGHER, A.J.,

and

MARY EILEEN KILBANE, J.,

CONCUR

17a

C ENTRY OF THE

APPENDIX C — Appendix

JOURNAL

COURT OF COMMON PLEAS OF CUYAHOGA

COUNTY, OHIO, DATED JULY 29, 2019

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

Case No: CV-18-904574

ROYSTON PHILLIPS,

Plaintiff,

VESUVIUS U.S.A. CORPORATION, ET AL.,

Defendant.

Judge: Peter J Corrigan

JOURNAL ENTRY

Plaintiff’s Motion for Leave to Reply in Support of his

Motion to Supplement his April 9, 2019 Motion with revised

Amended Complaint, filed July 5, 2019, is GRANTED.

Plaintiff’s Motion to Supplement his April 9, 2019 Motion

with Revised Amended Complaint, filed June 25, 2019, is

GRANTED.

Plaintiff’s Motion to Compel Discovery, filed May 16, 2019,

is GRANTED. Defendants shall provide responses to all

outstanding discovery requests by August 12, 2019. Court

declines to award attorneys fees at this time.

18a

Appendix C

Plaintiff’s Motion for Leave to File Second Amended

Complaint, filed April 9, 2019, is GRANTED.

/s/ Peter J. Corrigan

Judge Signature

07/29/2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.