ETSI found itself in a bind. A leading French nonprofit organization focused on standardizing transmission frequencies across telecommunications networks worldwide, the European Telecommunications Standards Institute (ETSI) had played a major role in promoting global interoperability of telecommunications equipment using cutting-edge technology.
Yet, the selection of one set of technological standards for a network invariably means the exclusion of another, which often invites accusations of anticompetitive conduct. As a result, it was unsurprising when, in 2012, TruePosition, a developer of cellular telecommunications products whose network architecture was denied inclusion in ETSI’s list of standard network formats, sued ETSI and several other firms alleging a conspiracy to deny TruePosition access to the global communications market. As discovery proceeded, however, ETSI argued that it could not produce much of the evidence sought by TruePosition because cooperating with American-style discovery requests in France is criminalized under the country’s so-called “blocking statute.” Indeed, the French Court of Cassation had just enforced the blocking statute for the first time in In re Advocat “Christopher X”—and had levied heavy penalties against the offending lawyer.