Litigation increasingly reaches data held abroad, where the sweep of American discovery meets foreign privacy regimes such as the GDPR. Although the Federal Rules of Civil Procedure do not resolve international conflicts of law directly, their text and the drafters' explanations frame how a U.S. court approaches electronically stored information (ESI) that sits offshore. This article grounds the analysis in the rules themselves and the Advisory Committee Notes, explaining what a court will look for, where the burden sits, and how a neutral can help parties structure a proportionate, cooperative process when foreign data is at issue.
The Reach of Rule 34: 'Possession, Custody, or Control' and Any Medium
Rule 34 lets a party request production of ESI that is in the responding party's "possession, custody, or control"—a formulation that focuses on the responding party's ability to obtain the data, not on where the data physically resides. The rule reaches "any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium."
The drafters deliberately made this reach expansive. The 2006 Committee Note explains that Rule 34(a) was amended "to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents" and that the provision "is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments." For a party facing cross-border discovery, this means the analysis rarely turns on whether foreign-stored data is discoverable in principle; it typically turns on burden, form, and proportionality.
Proportionality as the Pressure Valve
Because discovery scope under Rule 34 is measured against Rule 26(b), proportionality is the central limiting principle when data is difficult or sensitive to collect. The Northern District of California's ESI Guidelines direct that "the proportionality standard set forth in Fed. R. Civ. P. 26(b)(1) should be applied to the discovery plan and its elements, including the preservation, collection, search, review, and production of ESI."
Those Guidelines identify the factors a court weighs, including "the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." A party contending that foreign privacy law makes a broad collection unduly burdensome should frame its position in these terms. The Guidelines also counsel that "discovery requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable"—precision that narrows the volume of foreign data implicated in the first place.
Protecting Against Undue Burden and Expense
Where production of ESI is costly or intrusive, the rules supply a mechanism for protection. The 1970 Committee Note to Rule 34 explains that "the courts have ample power under Rule 26(c) to protect respondent against undue burden of expense, either by restricting discovery or requiring that the discovering party pay costs." It adds that where a party needs to check an electronic source, "the court may protect respondent with respect to preservation of his records, confidentially of nondiscoverable matters, and costs."
This protective apparatus is the natural home for concerns raised by foreign data-protection obligations. Rather than treating offshore data as categorically off-limits, the rules invite tailored orders—restricting scope, sequencing production, or shifting costs—that a neutral can help design. The same Note observes that "the burden thus placed on respondent will vary from case to case," underscoring that these questions are resolved on the specific record, not by broad pronouncement.
Early Cooperation and the Rule 26(f) Conference
Cross-border ESI problems are best surfaced early. The Northern District's Guidelines emphasize "the particular importance of cooperative exchanges of information at the earliest possible stage of discovery, including during the parties' Fed. R. Civ. P. 26(f) conference," and note that "an attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner."
The Guidelines list the topics parties should consider at the meet and confer, including "preservation; systems that contain discoverable ESI; search and production; phasing of discovery; protective orders; and opportunities to reduce costs and increase efficiency." They also direct parties to discuss "the sources, scope and type of ESI that has been and will be preserved," including "date ranges, identity and number of potential custodians," and "any difficulties related to preservation." For data subject to foreign law, phasing and protective orders are especially valuable tools, and framing preservation proportionately—so that the scope is "proportionate and reasonable and not disproportionately broad, expensive, or burdensome"—avoids over-collecting sensitive material before its relevance is clear.
What a Neutral Does With This Framework
A discovery neutral works within these authorities rather than around them. Because Rule 34 reaches ESI in a party's control regardless of storage medium, the productive conversation is about how, when, and at what cost foreign data enters the case—not whether the rules can theoretically reach it. Because Rule 26(b)(1) proportionality governs each phase, a neutral can help the parties calibrate custodians, date ranges, and search methods to the stakes and the parties' relative access to information.
The Guidelines' expectation of cooperation and early exchange, coupled with Rule 26(c)'s protective powers, gives a neutral concrete levers: sequencing discovery so that domestic sources are exhausted first, negotiating targeted requests, and proposing protective-order terms that address confidentiality and cost. This is educational guidance, not legal advice, and outcomes depend on the facts and the presiding court. But the disciplined application of these rules is what turns an intractable cross-border dispute into a manageable, staged process.
This article is provided for general informational purposes only and does not constitute legal advice. Engagement of Daniel Garrie as a neutral is administered exclusively through JAMS.