While the personal, social, and economic costs ensuing from the ongoing COVID-19 pandemic may be almost unfathomable, that’s certainly not going to stop enterprising lawyers from seeking a pound of proverbial flesh from those deemed responsible. Thus, as of this writing, four federal class-action lawsuits seeking trillions of dollars in damages have been filed against the government of China for its “direct” role in spreading the devastating virus around the world.

OK, then, good luck with that….

Like Pole Vaulting the Great Wall of China with a Broomstick

Suing our own Federal government is challenging enough, but the hurdles facing these lawsuits are akin to using a broomstick to pole vault across the Great Wall of China. Given federal rules on applicable class certification standards, it’s highly unlikely that a court will be willing to certify such a broad class consisting pretty much of any person and business in the country who has suffered injury, damage, and loss related to the pandemic.

And then there is the greater wall hurdle posed by the Foreign Sovereign Immunities Act (FSIA) of 1976. With a few narrow exceptions, this act prevents litigants from obtaining civil jurisdiction over a foreign state in U.S. courts. While the lawsuits claim FSIA exceptions, their connection to the alleged complaints are so amorphous as to render them all but dismissed upon arrival. 

But, What If?   

OK, so what if one of these cases manages to get certified and somehow passes muster with FSIA? That would certainly be some record-breaking pole vaulting, but that broomstick still has to get them over the hurdle posed by ediscovery. 

China does not have formal discovery practices in civil litigation and the government has several regulations, including its powerful State Secrets law, that restrict digital data gathering for investigation or litigation. Not only does the People’s Republic of China State Secrets law cover just about every issue that would need ediscovery in these cases, but the law is purposely vague enough to be interpreted in line with political thinking. It also includes catch-all language that protects “state affairs not yet decided upon” and “all other state affairs that must be kept secret.” 

Little doubt that the country’s handling of COVID-19 would fall under that latter category.    

Other Barriers to Chinese eDiscovery 

Other laws that could inhibit successful cross-border Chinese ediscovery include those covering counter terrorism, cybersecurity, financial audit data, and personally identifiable information. And China is tough on crime, don’t you know, which means that any transgression of these laws, and/or failure to follow proper clearance protocols, typically results in the imposition of severe penalties—emphasis on “severe,” unless you think a stint in a Chinese prison would be like a spa vacation.  

How About a Little Tit-for-Tat? 

Interestingly, the cross-border litigation over COVID-19 goes both ways, as a Chinese lawyer has filed suit against the United States and various U.S. government departments for an alleged cover-up of the pandemic, and another Chinese suit seeks compensation for the reputational damage caused by President Trump’s repeated use of calling COVID-19 the “Chinese Virus.” Little doubt that the Chinese plaintiffs have a greater chance of ediscovery success than the U.S. plaintiffs suing China. 

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