7

Two recent examples have prompted me to wonder about this:

  • In the Equustek case a Canadian company has gained an injunction in the Canadian courts ordering Google to remove certain material worldwide. Google now has an injunction in the US blocking the enforcement of this injunction in the US.

  • In the Microsoft case the US government is seeking a warrant forcing Microsoft to hand over some emails related to a drug investigation. The emails happen to be stored in Ireland, and Irish law (following the EU) prohibits the release of private information to a third party. The Irish law is likely to be even more stringent with the implementation of the EU General Data Protection Regulation (GDPR).

So what happens when a company is legally required to do something by one country when it is also legally prevented from doing it by another? Are there any general principles here, or is the company just going to have to decide which country to be held in contempt in?

Does this legal hazard also apply to individual employees? Might we see Microsoft executives having to choose between US and European arrest warrants for contempt?

I realise that the Microsoft case is still pending appeal to the US Supreme Court, but if the Court rules in the government's favour then this is going to be a real question.

5

These situations do come up (and incidentally, this is nothing new, it has been a difficult and recurring legal issue since at least the 18th century), and they really suck to be in, and often there aren't easy answers.

There are a lot of legal doctrines out there that are designed to avoid a hard clash of conflicting court orders and to prevent someone from suffering contempt of court sanctions when they are in this bind. Generally, litigants caught in this bind look for these outs.

For example, when particular property or records are at issue, often the person in question will "interplead" the property placing it in the jurisdiction of a court to resolve and out of their hands. There is a doctrine called in custodia legis which provides that once something is in the custody of a court that another court may not exercise jurisdiction over it.

The entire sub-field of civil procedure pertaining to jurisdiction and venue is designed to avoid these conflicts. U.S. law has a whole sub-field a statutes and legal doctrines like the Rooker-Feldman doctrine designed to prevent these conflicts from coming up when they arise between federal and state courts.

One of the most important legal doctrines is that a person cannot be punished for contempt of court for failing to do something that the person being held in contempt of court does not have the ability to do.

One argument, which doesn't always work, is that once you are subject to a legally binding court order that has been served upon you that you may not legally defy that court order in order to follow the order of a court which cannot override the decisions of the court issuing the first order.

Usually, contempt citations are directed at individual employees or agents rather than at entities. For example, in a dispute over Indian Trust Funds against the United States government, contempt citations were brought against the Secretary of Interior personally and could have sent that individual to jail for not complying. One way the an individual can get out of the order relating to an employment or professional duty is to resign from office and thus deprive oneself of the ability to perform the order.

But, the short answer is that there is no one simple legal rule for resolving these situations, and the litigants stuck in these situations look for every available legal argument to resolve it until it is resolved.

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