A French company that receives a request for documents in US proceedings can neither ignore it nor answer it freely. Law No. 68-678 of 26 July 1968, known as the French Blocking Statute, prohibits it, on pain of criminal penalties, from communicating economic, commercial or technical documents intended to serve as evidence in foreign proceedings outside the channels provided for by treaty. The US court, for its part, does not accept it as a sufficient excuse. There is room for manoeuvre between these two constraints, and it is built from the first letter received.
A rail equipment manufacturer based in the Isère, in the French Alps, sold parts to a US assembler, which was sued in Texas by a transport operator after a series of breakdowns. The assembler brought the manufacturer in as a third-party defendant. Three weeks later, the US lawyers sent a list of forty-two categories of documents: engineers’ emails since 2018, test results, correspondence with other customers, management accounts, all within thirty days. The general counsel opened the Blocking Statute for the first time and wondered whether to send everything, send nothing, or call someone at the Ministry of the Economy.
1. What the 1968 law actually prohibits
The law has two tiers. Its Article 1 prohibits any individual of French nationality or resident in France, and the officers and agents of a legal entity with its registered office or an establishment in France, from communicating to foreign public authorities economic, commercial, industrial, financial or technical documents or information whose communication is liable to harm France’s sovereignty, security, essential economic interests or public order. Its Article 1 bis goes further and targets evidence directly: subject to international treaties and agreements, it is prohibited to request, seek or communicate, in writing, orally or in any other form, documents or information of the same kinds with a view to building evidence for foreign judicial or administrative proceedings or in the course of such proceedings.
Article 2 requires the competent minister to be informed without delay of any such request. Article 3 punishes breaches with six months’ imprisonment and a fine of 18,000 euros, multiplied by five for a legal entity.
For a long time the law was said to be for show. That is no longer quite true: the French Supreme Court (Cour de cassation) upheld the conviction of a French lawyer who had tried to obtain, for the purposes of US proceedings, information on the decision-making process of a French mutual insurer (Cass. crim., 12 December 2007, No. 07-83.228). A single conviction, but enough to make the law real.
2. Since 2022, a designated contact: the SISSE
Decree No. 2022-207 of 18 February 2022 and its order of 7 March 2022 set out the procedure. A company that receives a request for disclosure refers it to the Strategic Information and Economic Security Service (SISSE), part of the Directorate General for Enterprise, which centralises declarations, gives an opinion on how sensitive the requested information is and liaises with the other government departments. The opinion is not a licence to disclose everything, but it documents the company’s approach, which carries real weight before the US court.
This referral must be made at the outset, before anything is transmitted, and not when the US judge threatens sanctions. That is the most common mistake: the company negotiates with the other side for three months, hands over part of the documents, then discovers that it should have declared the request.
3. The normal route: the 1970 Hague Convention
Evidence located in France can be obtained by letter of request under the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, to which France and the United States are both parties. The US court sends a request to the French central authority, which forwards it to a French judge. France has made a declaration under Article 23: it executes letters of request for pre-trial discovery only if the documents are exhaustively listed and have a direct and precise link with the subject matter of the dispute.
This is the key to the strategy: the Blocking Statute does not prohibit disclosure; it prohibits disclosure outside treaty channels. Offering the other side to go through The Hague, with a narrowed list, answers the request without breaking the law.
4. How the US court sees it
The US Supreme Court held that the Hague Convention is not an exclusive route and that a US court may order direct production under the federal rules, after a case-by-case international comity analysis (Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522, 1987). US courts weigh the importance of the documents to the case, how specific the request is, where the information originated, whether there are other means of obtaining it, and the respective interests of the two States. They also look at whether the risk of prosecution in France is real.
Invoking the 1968 law as a wall therefore has almost no chance of success. Invoking it with proof of a declaration to the SISSE, an offer to go through The Hague, an inventory of the truly sensitive documents and an offer to produce the others is a different matter, and it is how the best-prepared companies often obtain a substantial reduction in the scope of discovery, or the use of a letter of request for the most sensitive documents, without incurring sanctions for failure to cooperate, even though US case law remains on the whole unfavourable to foreign blocking statutes and each federal judge assesses the issue with considerable freedom, so that the file built in France, document by document and from the very first weeks, becomes in practice the company’s best argument before a judge who knows neither the 1968 law nor the SISSE.
The opposite risk must also be weighed: a poorly justified refusal exposes the company to heavy procedural sanctions, ranging from fines to an adverse inference, or even default judgment on the issues concerned.
5. The method, week by week
Week one is for sorting. You identify what the law actually covers, what it does not (documents already in the public domain, for example), and what falls under other protections, such as trade secrets or the GDPR for employees’ personal data contained in emails.
Week two is for declaring: referral to the SISSE with the request, the inventory and the proposed response. At the same time, the company’s US lawyers open talks on scope (meet and confer) and propose using The Hague for the sensitive categories.
Then you document. Every exchange with the SISSE, every proposal made to the other side, every reasoned refusal must be capable of being produced before the US court if it hears a motion to compel.
The Isère manufacturer followed this path. Commercial emails with other customers, unrelated to the breakdowns, were excluded by agreement; test results were transmitted through The Hague; the rest was produced directly, after the SISSE’s opinion.
6. A related case: Section 1782 and arbitration
A party to foreign proceedings can also ask a US federal court to order the production of evidence held in the United States, under Section 1782 of Title 28 of the United States Code. In 2022 the Supreme Court held that this mechanism cannot be used for private commercial arbitration (ZF Automotive US, Inc. v. Luxshare, Ltd.). For a French company whose US subsidiary holds documents, this is useful to know: international arbitration protects it better from discovery than litigation does.
Getting help with a discovery request
The firm assists French companies with the declaration to the SISSE, coordination with their US lawyers and the defence of their interests before the French courts. See our international commercial litigation lawyer page, our article on OFAC and the extraterritorial reach of US law and, for an initial discussion, our contact page.
Further reading: Bank guarantees and Russia sanctions: blocking the call, defending in Russia.
Frequently asked questions
Does the Blocking Statute prohibit responding to US discovery?
It prohibits communicating economic, commercial, industrial, financial or technical documents intended to serve as evidence in foreign proceedings, except through treaty channels, notably the 1970 Hague Convention, and so does not prohibit every response.
Must the document request be declared?
Yes. Article 2 of the law requires the competent minister to be informed without delay. Since Decree No. 2022-207 of 18 February 2022, the declaration is made to the SISSE, which gives an opinion.
What are the penalties for a breach?
Six months’ imprisonment and a fine of 18,000 euros for an individual, five times the fine for a legal entity. The French Supreme Court upheld a conviction in 2007.
Do US courts respect the Blocking Statute?
They take it into account without considering themselves bound, since the Aérospatiale decision of 1987. A company that shows a serious approach, a declaration to the SISSE and an offer to go through The Hague, often obtains a narrower request.
Does discovery also apply in arbitration?
Not in the same way. Arbitrators organise document production under their rules and, since the ZF Automotive decision of 2022, Section 1782 cannot be used in support of private commercial arbitration.
On the same subject: international sanctions, what a French exporter must be able to prove in 2026, enforcing a US or English judgment in France and the ICC arbitration clause, five decisions before signing.