US Litigation Risk: Recent Developments

December 11, 2008
Owen C. Pell

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The US legal system has long been defined by its reputation for excess.  For non-US businesses, the task of managing US litigation may seem daunting.  In particular, the idiosyncrasies of US civil procedure with respect to the reach of US law and the difficulty defendants may have in containing US litigation have tended to reinforce, rather than dissipate, those concerns.

A number of recent developments may signal a new direction in US litigation, as some US courts attempt to rein in the extraterritorial application of US law, and to tighten pleading standards. Nevertheless, recent amendments to federal court procedural rules relating to electronic information, as well as a recognized duty to preserve documents that arises as soon as litigation begins, mean that the US discovery process remains a significant challenge that must be actively managed  for any party involved in US litigation.