by Nikolay G. Markov 1
INTRODUCTION
In today’s highly globalized world, US companies often choose to expand and create branches in foreign countries. Because of the large amount of international business that US companies are involved in, it is not surprising that they are increasingly subject to foreign litigation. Although foreign parties can readily sue a US company in United States federal court, 2 there may be significant benefits to bringing the suit in a foreign tribunal.
3
However, if a party decides to sue abroad, it is giving up one of the main advantages to a suit in the United States – broad discovery procedures.
4
As discussed in more detail later in the paper, in most Civil Law systems the right to obtain documents from an opposing party is much more limited.
Parties seeking to take advantage of both the foreign substantive laws and US discovery procedure at the same time are likely to consider using Section 1782 of Title 28 of the United
States Code. The statute’s first sentence provides that:
1
The author is third-year law student at the University of Pittsburgh School of Law; Candidate for J.D. in May, 2014. B. S. in Business Administration from Shawnee State University, 2009.
2
Under the Federal Rules of Civil Procedure, the federal district court needs to have both personal jurisdiction and subject matter jurisdiction over the defendant. As long as the defendant company has an office in the United States, the federal district court where that office is located will have personal jurisdiction. The second requirement for federal subject matter jurisdiction is satisfied, under diversity jurisdiction, when the foreign party and the United States business have different domiciles, as long as the dispute exceeds $75,000.
3 As part of the considerations for forum selection, a foreign party may find the procedural and substantive laws of the foreign country to be more beneficial to their case, or it could just decide that it is more convenient to sue in its local forum.
4 Under the Federal Rules of Civil Procedure, a party to U.S. litigation is entitled to very broad requests for discovery of relevant information from their opposing party, with very few limitations. See F.R. Civ. P. 26(b)(1) (2012).
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The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.
5
The first time Congress provided that federal courts should aid foreign tribunals was in the Act of Mar. 2, 1855.
6
As the Sixth Circuit court explains, “Apparently its passage was initiated to aid a French court in a criminal proceeding.” 7
Ever since that first push, the policy of the United States has been moving toward broader grants of discovery of information in the
United States, which is to be used in proceedings abroad. This movement toward offering US discovery on a silver platter to foreign litigants reached a high point with 28 U.S.C. §1782, originally enacted in 1948.
8
As the Supreme Court states, the “twin aims” for enacting §1782 are: (1) “Providing efficient assistance to participants in international litigation” and (2) “encouraging foreign countries by example to provide similar assistance to our courts.” 9
Some courts even state that the statute aims to familiarize foreign legal systems with the benefits of broad discovery in an attempt to induce them to into enlarging the discovery procedures in their own systems.
10
However, those purported goals of the statute do not consider (or at least not with sufficient rigor) the negative implications of injecting an isolated procedural weapon, such as US
5
28 U.S.C. §1782 (2012).
6
See Act of Mar. 2, 1855, ch. 140, § 2, 10 Stat. 630; See also, Intel Corp. v. Advanced Micro
Devices, Inc .
, 542 U.S. 241, 247 (2004).
7
In Re Letter Rogatory from Justice Ct., Dist. Of Montreal Canada, 523 F.2d 562, 564 (6th Cir.
1975).
8
28 U.S.C. §1782 (2012).
9
Intel Corp., 542 U.S. at 252.
10 Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 594 (7th Cir. 2011) (“The stated reason was by setting an example to encourage foreign countries to enlarge discovery rights in their own legal systems”).
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discovery, into a wholly different system, such as the European civil law system. In a civil law system, discovery procedures are generally very limited, denying broad categorical discovery requests, known as “fishing expeditions.”
11
The Congress which enacted §1782 in 1948 also could not have peaked into the future to predict the development of electronics and the profound impact technology would have on all aspects of business and records keeping. The boom in electronically stored information (ESI) has created a totally separate set of challenges when it comes to document gathering and production for discovery. Those changes have greatly increased the burdens associated with even simple ESI production requests, which allows §1782 to become a potential tool for overwhelming a foreign court, undermining established foreign procedures, and offending the foreign government.
Courts are beginning to realize and acknowledge these important problems,
12
but do not seem to be able or willing to deal with them sufficiently.
13
This paper will propose possible approaches that district courts can adopt in order to minimize the burdens of imposing a controversial procedural tool, like U.S. discovery, on foreign systems.
My analysis will proceed in the following way: In Section I , I will describe the development of section 1782, the purpose for its enactment, and its current application by United
States courts. In Section II, I will explain the principal difference between the common law system in the United States and the civil law system followed by most European nations. In
Section III, I will discuss the potential problems to foreign courts that may arise under the current application of section 1782 and how the current caselaw fails to address these concerns.
11
This is the case especially with the French legal system.
12 See , Heraeus Kulzer, 633 F.3d 591.
13
The Supreme Court and circuit courts consistently prohibit district courts from evaluating the very factors which create the problems for the foreign legal systems.
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In Section IV , I will recommend that district courts engage in comparative law analysis when limiting the discovery orders to ensure that foreign legal systems are not overburdened, taken advantage of, or offended by the imposition of U.S. discovery. Finally, in the Conclusion , I will summarize the problem and my recommendation.
I. 28 USC §1782(a)
Foreign parties who are not satisfied with choosing between the alternatives of (1) having the benefits of U.S. discovery, or (2) having the possible benefits of the foreign tribunal, have found ways to obtain U.S. discovery rights from United States courts, while holding the trial proceedings in a foreign country. While there is more than one way for a party to a foreign litigation to obtain discovery of information located in the United States, 14 this article will focus specifically on the application of section 1782 of Title 28 of the United States Code.
15
14
Omnium Lyonnais v. Dow Chemical Co., 73 F.R.D. 114 (C.D. Cal. 1971) (A case before the
United States District Court for the Central District of California was also pending in a French
Court. The U.S. district court, finding that the case would be best heard in France, granted an abatement order for all proceedings in the United States “except discovery proceedings for the purposes of the litigation in France….”); Piper Aircraft Co., v. Reyno, 454 U.S. 235(1981)
(Plaintiff to a tort case filed the action in the United States, but the district court granted defendant’s motion for forum non conveniens because all parties to the case resided in Scotland.
The United States Supreme Court upheld the district court’s dismissal of the case, but commented that “[i]n the future, where similar problems are presented, district courts might dismiss subject to the condition that defendant corporations agree to provide the records relevant to the plaintiff’s claims.); Multilateral Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444 (“Hague
Convention") (“The Hague Convention, ratified by the United States in 1972, provides a uniform system of discovery in foreign jurisdictions. It sets out procedures for gathering evidence from foreign countries through "letters of request" or through diplomatic officers, consular agents, and appointed commissioners.” Societe Nationale Industrielle Aerospatiale v. United States Dist. Ct .,
788 F.2d 1408, 1409 (9th Cir. 1986). However, the reason that this treaty is not the exclusive avenue for obtaining evidence for litigation abroad is that U.S. courts have interpreted it as nonmandatory, stating that “The Federal Rules of Civil Procedure, not the Hague Convention, normally govern discovery of documents….”
15
28 U.S.C. §1782 (2012).
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A.
Legislative History:
The history of the United States’ assistance to litigation in foreign tribunals first began with Congress’ enactment of the Act of March 2, 1855,
16
providing for the forwarding of letters rogatory
17
through diplomatic channels.
18
This initial statute granted broad authority to the
United States courts to compel the testimony of witnesses for assistance to foreign courts; 19 more specifically, it was enacted to aid a French Court in criminal proceedings.
20
Congress seems to have drawn back on its efforts to allow assistance to foreign litigation with the promulgation of another act in 1863,
21 which again allowed the federal courts to take testimony of witnesses in the United States, but only under letters rogatory issued and in limited
16
See Act of Mar. 2, 1855, ch. 140, § 2, 10 Stat. 630, stating: “Sec. 2. And be it further enacted,
That where letters rogatory shall have be addressed, from any court of a foreign country to any circuit court of the United States, and a United States commissioner designated by said circuit court to make the examination of witnesses in said letters mentioned, said commissioner shall be empowered to compel the witnesses to appear and depose in the same manner as to appear and testify in court.”
See also, Intel Corp. 542 U.S. at 247 (Discussing the historical development of
28 U.S.C. §1782).
17
“Letters rogatory are the medium, in effect, whereby one country, speaking through one of its courts, requests another country, acting through its own courts and by methods of court procedure peculiar thereto and entirely within the latter's control, to assist the administration of justice in the former country; such request being made, and being usually granted, by reason of the comity existing between nations in ordinary peaceful times.”
In re Letter Rogatory from
Justice Court, Dist. of Montreal , 523 F.2d 562 (6th Cir. 1975).
18
Intel Corp., 542 U.S. at 247.
19
In Re Letter Rogatory from Justice Ct., Dist. Of Montreal Canada, 523 F.2d 562, 564 (6th Cir.
1975).
20
Id. However, the statute was erroneously indexed under the heading of “Mistrials” and was largely unused. See Harry L. Jones, International Judicial Assistance: Procedural Chaos and a
Program for Reform, 62 Yale L.J. 515, 540 (1953).
21 Act of March 3, 1863, ch. 95, 12 Stat. 769-70, stating in part: “Be it enacted by the Senate and
House of Representatives of the United States of America in Congress assembled, That the testimony of any witness residing within the United States, to be used in any suit for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party or shall have an interest, may be obtained, to be used in such suit.”
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types of litigation.
22
The legislation from 1855 was still on the books, but was largely ignored and practically replaced by the subsequent congressional act. The Act of 1863, may have been motivated by a realization on the part of Congress that the power to provide assistance to foreign courts was granted too broadly in the Act of 1855, which only required the issuance of a letter rogatory.
23
The added language, requiring the foreign government to have at least an interest in the action, together with the requirement for letter rogatories to be issued, has the effect of limiting requests by private parties. One possible explanation is that Congress was apprehensive of granting private parties this power, because they would be prone to taking advantage of the differences in legal systems.
24
In 1948, Congress substantially broadened the assistance granted to foreign tribunals by replacing the acts of 1855 and 1863 with 28 USC §1782.
25
This first version of section 1782 was likely enacted to meet the increasing inflow of requests for documents from foreign sources, as well as to put an end to the widely perceived “isolationism” of the United States when it comes
22 “[A]ny suit for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party or shall have an interest ….” In Re Letter Rogatory from Justice Ct., Dist.
Of Montreal Canada , 523 F.2d at 564 (stating that the Act of March 3, 1863 “largely undercut the 1855 legislation”).
23
See Janssen v. Belding-Corticelli, Ltd., 84 F.2d 577 (3d Cir. 1936) (Stating, “No witness shall be compelled under this section to appear and testify except for the purpose of answering such interrogatories so issued and accompanying such commission or letters.”).
24
See Janssen v. Belding-Corticelli, Ltd., 84 F.2d 577 (3d Cir. 1936) (Reversing the discovery orders granted by the district court, where U.S. discovery was requested by a private party litigant instead of through letters rogatory. The court stated: “Neither the Constitution nor any statute operative in Pennsylvania, either state or federal, gives the court the right or authority to subject one of its citizens to a ‘roving oral examination,’ as was sought in this case.”).
25 Act of June 25, 1948, ch.646, 62 Stat. 949, stating: “The deposition of any witness residing within the United States to be used in any civil action pending in any court in a foreign country with which the United States is at peace may be taken before a person authorized to administer oaths designated by the district court of any district where the witness resides or may be found.”
See also In Re Letter Rogatory from Justice Ct., Dist. Of Montreal Canada , 523 F.2d 562, 564
(6th Cir. 1975).
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to international judicial assistance.
26
The new statute removed the requirement that a foreign government is a party or has an interest in the discovery and it also changed the language to include “Any civil action pending in any court in a foreign country.” 27
One year later the language was further expanded by replacing the phrase “any civil action” with “any judicial proceeding.” 28
Even with those expansions in the statutory language, the federal courts continued employing a restrained approach.
29
The statute was completely revised in 1964 as a part of a broad legislation directed toward expanding the international relations of the United States.
30
Enacted pursuant to a recommendation from the Commission on International Rules of Judicial Procedure
31
26 As a Yale Law Review article states, “Our Department of State regretted that our government
‘was not in a position to insure the delivery of foreign judicial documents in the United States.’
The persistent isolationism of the United States in private law matters has become well known abroad. Our government was not even extended an invitation to the Seventh Hague Conference in 1951. With the exception of certain specialized activities, the cooperation of the United States in the field of private international procedural law is now limited to participation in the Inter-
American Juridical Council and its committee.” Harry Leroy Jones, International Judicial
Assistance: Procedural Chaos and A Program for Reform, 62 Yale L.J. 515, 558 (1953).
27
Act of June 25, 1948, ch. 646, 62 Stat. 949.
See also In Re Letter Rogatory from Justice Ct.,
Dist. Of Montreal Canada , 523 F.2d 562, 564 (6th Cir. 1975).
28 Act of May 24, 1949, ch. 139, s 93, 63 Stat. 103, stating: “SEC. 93. Section 1782 of title 28,
United States Code, is amended by striking out ‘residing’, which appears as the sixth word in the first paragraph, and by [569] striking out from the same paragraph the words ‘civil action’ and in lieu thereof inserting ‘judicial proceeding’". See also In Re Letter Rogatory from Justice Ct.,
Dist. Of Montreal Canada , 523 F.2d 562, 564 (6th Cir. 1975).
29
See In Re Letter Rogatory from Justice Ct., Dist. Of Montreal Canada , 523 F.2d 562, 565 (6th
Cir. 1975) (Stating, “The narrow scope of these statutes was underscored and reinforced by the decisions of federal courts.”).
30
The language emerging from those amendments is largely the current statutory language. See
Act of Oct. 3, Pub L 88-619, §9, 78 Stat 997 (1964).
31 Congress created the Commission in 1958 to “investigate and study existing practices of judicial assistance and cooperation between the United States and foreign countries with a view to achieving improvements. To the end that procedures necessary or incidental to the conduct and settlement of litigation in State and Federal Courts and quasi-judicial agencies which involve the performance of acts in foreign territory, such as the service of judicial documents, the obtaining of evidence, and the proof of foreign law, may be more readily ascertainable, efficient,
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(Commission), this revision was described as “a significant departure by Congress from its cautious approach to international judicial assistance over the past century.” 32 The Commission was entrusted to advance a revision of the law in order to provide “(w)ide judicial assistance . . . on a wholly unilateral basis.”
33
A major part of the changes made by the 1964 amendment was to remove the requirement for a letter rogatory and allow interested parties to request discovery on their own.
34
As the Senate Report states,
A request for judicial assistance under the proposed revision may either be contained in a letter rogatory or other request or be made in a direct application by an interested person, such as a person designated by or under a foreign law, or a party to the foreign or international litigation.
35
However, regardless of this push toward allowing U.S. discovery in as many cases as possible, the Commission also wanted to insure that district courts would not be forced to turn a blind eye to the foreign tribunals, but will be able to consider at some point the “nature and attitude of the government of the country from which the request emanates and the character of the proceedings in that country….” 36 economical, and expeditious, and that the procedures of our State and Federal tribunals for the rendering of assistance to foreign courts and quasi-judicial agencies be similarly improved….”
Act of September 2, 1958, Pub. L. No. 85-906, 72 Stat. 1743 (1958).
32 In Re Letter Rogatory from Justice Ct., Dist. Of Montreal Canada , 523 F.2d 562, 565 (6th Cir.
1975).
33
Amram, New Developments in International Judicial Assistance in the United States of
America, 32 J.B. Ass'n of D.C. 24, 28 (1965). See also In Re Letter Rogatory from Justice Ct.,
Dist. Of Montreal Canada , 523 F.2d 562, 565 (6th Cir. 1975).
34
“The 1964 amendments made four major changes: First, documentary and tangible evidence was included as well as the taking of depositions and testimony. Second, the word ‘court’ was changed to ‘foreign or international tribunal.’ Third, an ‘interested person’ was allowed to request assistance as well as the tribunal itself. Finally, the word ‘pending’ was deleted.” E.
Morgan Boeing, Note: Majority and Dissent in Intel: Approaches to Limiting International
Judicial Assistance, 29 Hastings Int'l & Comp. L. Rev. 381, 384 (2006) (footnote 10).
35
S. Rep. 88-1580, 1964 U.S.C.C.A.N. 3782, 3789.
36
S. Rep. 88-1580, 1964 U.S.C.C.A.N. 3782, 3788.
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The current version of Section 1782 of Title 28 of the United States Code was reached after a final amendment in 1996, which was only enacted to clarify that the statute applies to criminal cases as well as civil.
37
The statutory language today states:
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
38
The legislative history clearly evidences an expansion in the application of section 1782 over time.
39
Congress’ underlying reasoning for the creation of the Commission and the 1964 amendments was to entice other nations to increase their assistance to U.S. courts.
40
The
37
“The amendment of 1996 clarified that ‘foreign or international tribunal’ includes ‘criminal investigations conducted before formal accusation.’” Act of Feb 10, 1996, Pub. L. No. 104-106,
§1342(b), 110 Stat. 486 (1996).
38
28 U.S.C. §1782(a) (2012).
39
“This evolutionary process has extended progressively from suits ‘for the recovery of money or property,’ to ‘any civil action,’ to ‘any judicial proceeding,’ and finally, to ‘a proceeding in a foreign or international tribunal.’ These changes have made the statute increasingly less restrictive and thus have evidenced the intent of Congress that the assistance be available to foreign governments in a greater number of instances.” In Re Letter Rogatory from Justice Ct.,
Dist. Of Montreal Canada , 523 F.2d 562, 565 (6th Cir. 1975).
40
“As the legislative history reveals, the purpose behind the proposals was to prod other nations into following the lead of the United States in expanding procedures for the assistance of foreign litigants.”
In Re Letter Rogatory from Justice Ct., Dist. Of Montreal Canada , 523 F.2d 562, 565
(6th Cir. 1975) (citing S. Rep. No. 1580, 1964 U.S. Code Cong. & Admin. News, p. 3783.).
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underlying “twin aims” of section 1782 are: “providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance to our courts.” 41
B.
Judicial Interpretation:
Even after the long developmental history of section 1782, the interpretation of the statutory language has been the cause of prolonged disputes. Leaning more toward liberal granting of discovery orders, federal courts have interpreted the statute as allowing discovery in more cases than just the traditional requests - a litigant in a foreign court proceeding requesting information from opposing party who is located in the United States.
According to the Supreme Court in Intel Corp.
,
42
section 1782 allows discovery to be requested not only by litigants in front of a tribunal, but also by any “interested person,” which may include a complainant before a commission, a foreign official, or any other person who
“merely possesses a reasonable interest in obtaining the assistance.” 43
The Court has also interpreted the statute to allow the discovery of information from third parties who are not even involved in the litigation, as long as they are located or reside in the United States.
44
Further, the foreign proceedings need not be before a traditional court, instead, a “tribunal” includes
41
Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 252 (2004) (Citing the underlying
Ninth Circuit Court opinion.).
42
In Intel Corp. v. Advanced Micro Devices, Inc.
, where Advanced Micro Devices filed an antitrust claim against Intel in the European Communities and sought documents previously produced by Intel in a different case in the U.S., the Supreme Court decided that the discovery request should be granted. 542 U.S. 241 (2004).
43 Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 257 (2004) (Quoting Hans Smit,
International Litigation Under the United States Code, 65 Colum. L. Rev. 1015, 1026-27
(1965).).
44 See Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 264(2004) (Stating that a party is more likely to require the assistance of the U.S. when the producing party is not subject to the foreign court’s procedures.).
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“administrative and quasi-judicial proceedings abroad.” 45
It is also not necessary for the foreign proceedings to be pending or even imminent for discovery to be granted; the statute only requires that a “dispositive ruling” is “within reasonable contemplation.” 46
In the interpretation of section 1782, circuit courts and the Supreme Court continue to recognize that the district courts have the discretion to grant or deny the discovery orders.
47
However, this freedom of judgment granted to the district courts has been severely restricted by findings of abuse of discretion by superior courts. Circuit courts have held that considering certain factors as sufficient in denying assistance to foreign litigation is not allowed under the statute. In In re Application of Malev Hungarian Airlines , the Second Circuit Court held that a district court is not allowed to consider whether the requesting party has even attempted to secure the evidence from the foreign tribunal before making the request to the U.S. court.
48
Perhaps one of the most controversial interpretations of section 1782 is that district courts are not allowed to conduct a comparative law analysis
49
of the foreign law when determining
45
Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 258 (2004). The Court further clarifies that “the term ‘tribunal’ … includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts.” (Quoting Hans Smit, International Litigation Under the
United States Code, 65 Colum. L. Rev. 1015, 1026-27 (1965).).
46 Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 259 (2004) (Overruling a previous case and stating: “Instead, we hold that §1782(a) requires only that a dispositive ruling … be within reasonable contemplation.”).
47
“The statute authorizes, but does not require, a federal district court to provide assistance ….”
Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 255 (2004).
48
“We find nothing in the text of 28 U.S.C. § 1782 which would support a quasi-exhaustion requirement of the sort imposed by the district court.”
In re Application of Malev Hungarian
Airlines , 964 F.2d 97, 100 (2d Cir. 1992). See also Euromepa, S.A. v. R. Esmerian, Inc., 51 F.3d
1095, 1098 (2d Cir. 1995) (Holding that even though the requesting party “failed to even attempt to use the mechanism provided by French procedure for obtaining documents” the district court should not have used the quasi-exhaustion as a reason to deny the request.).
49
“Quite simply, comparative law ‘is the comparison of the different legal systems of the world.’
Comparative law scholars compare and analyze ‘the spirit and style of different legal systems,
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whether to grant the foreign discovery request. In Application of Euromepa , pursuant to a section
1782 request from a party to a French litigation, the district court conducted an analysis of the
French law out of concern for the possibility of offending the French court by allowing the fruits of U.S. discovery to be introduced there.
50
However, the Second Circuit Court stated that the district court abused its discretion by conducting such an examination of foreign law, even if it was for the sole purposes of ascertaining the foreign tribunal’s attitude toward U.S. discovery.
51
According to the Circuit Court, the only time that the foreign government’s attitude can counsel against granting of assistance is when there has been an “authoritative proof” of this attitude.
52 the methods of thought and procedures they use’ at the macrolevel, and the differences in
‘specific legal institutions[, and] the rules used to solve actual problems or particular conflicts of interests’ at the microlevel. Instead of simply describing different foreign legal systems, comparative law makes explicit comparisons between different legal systems and focuses on the functional significance of those differences. Whether or not American judges explicitly state their reliance on comparative law techniques in transnational litigation decisions, judges often do incorporate the comparison of different legal systems into their opinions, including in ediscovery cases.” Lauren Ann Ross, A Comparative Critique to U.S. Courts' Approach to E-
Discovery in Foreign Trials, Duke L. & Tech. Rev., November 21 2012, at 313, 316.
50
“Whether the evidence MEPA seeks would be discoverable in France or not is unknown and irrelevant to me. My decision is based on the determination that granting this petition would be an unwarranted intrusion into France's system of evidence gathering.”
Application of Euromepa,
S.A.
, 155 F.R.D. 80, 84 n.2 (S.D.N.Y. 1994).
51 “We do not believe that an extensive examination of foreign law regarding the existence and extent of discovery in the forum country is desirable in order to ascertain the attitudes of foreign nations to outside discovery assistance.”
Euromepa, S.A. v. R. Esmerian, Inc., 51 F.3d 1095,
1099 (2d Cir. 1995). The court further interpreted the legislative history of section 1782 from the
1964 amendments, which calls for consideration of the foreign tribunal’s attitude toward U.S. discovery. Id
. See also, supra note 37. The court held that the drafter’s statements are simply
“authorizing district courts to scrutinize the underlying fairness of the foreign proceedings to insure they comply with notions of due process,” effectively dismissing the underlying concern for setting an example for other nations to follow. Euromepa, S.A. v. R. Esmerian, Inc., 51 F.3d
1095, 1099 (2d Cir. 1995).
52 “[W]e believe that a district court's inquiry into the discoverability of requested materials should consider only authoritative proof that a foreign tribunal would reject evidence obtained with the aid of section 1782. Such proof, as embodied in a forum country's judicial, executive or legislative declarations that specifically address the use of evidence gathered under foreign procedures, would provide helpful and appropriate guidance to a district court in the exercise of its discretion. Absent this type of clear directive, however, a district court's ruling should be
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However, in that case even the French blocking statutes were not sufficient “authoritative proof” of the country’s contempt of U.S. discovery.
53 Further, the Supreme Court in Intel held that the statute does not allow district courts to deny a discovery request based on the lack of “foreigndiscoverability” of the requested evidence.
54
After circuit and district court splits on this issue,
55 the Supreme Court chose to uphold the Second, Third and Ninth Circuit decisions and opt for a liberal application of the statute by not allowing district courts to use the lack of foreign discoverability as a categorical bar to granting assistance.
56 In its opinion, the Supreme Court solidified the view that comparative law analysis by district courts is not allowed.
57
Furthermore, the Second Circuit in Brandi-Dohrn held that a district court is not even allowed to consider informed by section 1782's overarching interest in ‘providing equitable and efficacious procedures for the benefit of tribunals and litigants involved in litigation with international aspects.’” Euromepa S.A. v. R. Esmerian, Inc ., 51 F.3d 1095, 1100 (2d Cir. 1995).
53
Euromepa S.A. v. R. Esmerian, Inc ., 51 F.3d 1095 (2d Cir. 1995).
54
“Foreign-discoverability” refers to the question of whether “§ 1782(a) categorically bar[s] a district court from ordering production of documents when the foreign tribunal or the ‘interested person’ would not be able to obtain the documents if they were located in the foreign jurisdiction?”
Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 259 - 60 (2004).
55 “The First and Eleventh Circuits have construed § 1782(a) to contain a foreign-discoverability requirement. See In re Application of Asta Medica, S. A., 981 F.2d 1, 7 (C.A.1 1992); In re
Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 1151,
1156 (C.A.11 1988). The Fourth and Fifth Circuits have held that no such requirement exists if the § 1782(a) applicant is a foreign sovereign. See In re Letter of Request from Amtsgericht
Ingolstadt, F.R.G., 82 F.3d 590, 592 (C.A.4 1996); In re Letter Rogatory from First Court of
First Instance in Civil Matters, Caracas, Venezuela, 42 F.3d 308, 310–311 (C.A.5 1995). In alignment with the Ninth Circuit, the Second and Third Circuits have rejected a foreigndiscoverability requirement. See In re Application of Gianoli Aldunate, 3 F.3d 54, 59–60 (C.A.2
1993); In re Bayer AG, 146 F.3d 188, 193–194 (C.A.3 1998).” Intel Corp. v. Advanced Micro
Devices, Inc.
, 542 U.S. 241, 253 (2004) (footnote 7).
56
Intel Corp. v. Advanced Micro Devices, Inc ., 542 U.S. 241, 253 (2004).
57
“Section 1782 is a provision for assistance to tribunals abroad. It does not direct United States courts to engage in comparative analysis to determine whether analogous proceedings exist here.
Comparisons of that order can be fraught with danger.”
Intel Corp. v. Advanced Micro Devices,
Inc ., 542 U.S. 241, 263 (2004).
Nikolay G. Markov
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whether the evidence which will be gathered by the requesting party will be admitted into the foreign proceedings.
58
In Intel , the Supreme Court attempted to emphasize the discretionary aspect of the district courts’ power to grant or deny discovery assistance requests by providing four factors the courts are allowed to consider in their decision.
59
These four factors are:
(1) whether the person from whom discovery is sought is a participant in the foreign case; (2) the nature and character of the foreign proceeding, and whether the foreign court is receptive to judicial assistance from the United States; (3) whether the discovery request is an attempt to avoid foreign evidence-gathering restrictions; and (4) whether the discovery request is unduly intrusive or burdensome.
60
Even though these factors seemingly gave district courts a tool which they can use to more easily deny section 1782 requests, Justice Breyer still dissented from the opinion in Intel .
61
In his dissent, Justice Breyer argues for at least two categorical limitations to assisting foreign tribunals, which call for substantial comparative law analysis on the part of district courts.
62
The first categorical limit argued for is denying discovery assistance when the foreign proceeding is
58
“Section 1782(a) contains no requirement that particular evidence be admissible in a foreign proceeding to be considered ‘for use in a proceeding in a foreign or international tribunal.’”
Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 77 (2d Cir. 2012) (Reversing the district court’s denial of assistance even though the German appellate court where the litigation was held was not allowed to consider evidence that could have been obtained during the trial but was not.).
59
“As earlier emphasized, … a district court is not required to grant a §1782(a) discovery application simply because it has the authority to do so. … We note below factors that bear consideration in ruling on a §1782(a) request.” Intel Corp. v. Advanced Micro Devices, Inc.
, 542
U.S. 241, 264 (2004).
60
Lauren Ann Ross, A Comparative Critique to U.S. Courts' Approach to E-Discovery in
Foreign Trials, Duke L. & Tech. Rev., November 21 2012, at 313, 322-23.
61
Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 267 (2004).
62
Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 267 (2004).
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not before a true “tribunal.” 63
The second categorical limitation Justice Breyer argues for is denying discovery assistance in cases where: “(1) A private person seeking discovery would not be entitled to that discovery under foreign law, and (2) the discovery would not be available under domestic law in analogous circumstances,” recognizing that the evidence that will be produced from the discovery order would not be available to the requesting party both under the foreign and domestic system apart from using section 1782.
64
After the Supreme Court announced these factors, circuit courts continue to interpret the district courts’ discretion very narrowly.
65
In Heraeus, the Second Circuit held that a district court can and should consider whether the factors are indicating a possible abuse from the requesting party, but only to decide whether the request is “frivolous.”
66
The Second Circuit agreed that the district court could consider whether the foreign tribunal would be receptive to the assistance and whether the request is an attempt to avoid foreign evidence-gathering restrictions.
67
However, even though the analysis of German procedure indicated that their courts do not have similar discovery procedures and may easily be swamped by U.S. discovery productions, the Circuit Court reversed the denial of assistance because the request did not seem
63
“First, when a foreign entity possesses few tribunal-like characteristics, so that the applicability of the statute’s word ‘tribunal’ is in serious doubt ….”
Intel Corp. v. Advanced
Micro Devices, Inc.
, 542 U.S. 241, 269 (2004)
64
“Neither Advanced Micro Devices, Inc. (AMD), nor any comparable private party would be able to obtain the kind of discovery AMD seeks, either in Europe or in the United States.” Intel
Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 270, 272 (2004).
65 See Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591 (7th Cir. 2011). See also Brandi-
Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 77 (2d Cir. 2012).
66
Heraeus Kulzer, GmbH v. Biomet, Inc.,
633 F.3d 591, 598 (7th Cir. 2011) (Stating: “It’s not as if [Heraeus’s] demands were frivolous; it obviously needs a good deal of discovery in order to prepare its case against Biomet.”).
67
Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 596 (7th Cir. 2011).
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frivolous due to the potential benefit to the requesting party.
68
The Circuit Court seems to only allow foreign procedure analysis for the sake of determining if there has been “bad faith” on part of the requesting party.
69
In Brandi-Dohrn , a request for assistance to securities fraud litigation in Germany, the
District Court denied the discovery request based on its determination that the evidence would likely not be admitted by the German court.
70
However, the District Court was reversed because it used a comparative law analysis to determine the foreign laws in Germany.
71 The effect of these increasingly stifling decisions is to prevent district courts from conducting any comparative law analysis, which disables their ability to determine a foreign tribunal’s procedures and even their attitude toward U.S. discovery in furtherance of the “twin aims” of section 1782.
After such crippling interpretation by the Supreme Court and circuit courts, the district courts’ only real discretion lies in structuring the discovery order and controlling the evidencegathering process.
72
68 Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 596 - 97 (7th Cir. 2011).
69
“’[I]f the district court determines that a party's discovery application under section 1782 is made in bad faith, for the purpose of harassment, or unreasonably seeks cumulative or irrelevant materials, the court is free to deny the application in toto, just as it can if discovery was sought in bad faith in domestic litigation.’”
Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 77,
81 (2d Cir. 2012) (Quoting Euromepa S.A. v. R. Esmerian, Inc.
, 51 F.3d 1095, 1101 n.6 (2d Cir.
1995).).
70
Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 77 (2d Cir. 2012).
71
“[Requiring] a district court to apply admissibility laws of the foreign jurisdiction would require interpretation and analysis of the foreign law and such ‘[c]omparisons of that order can be fraught with danger.’” Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 77, 82 (2d
Cir. 2012) (Quoting Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241 (2004).).
72
“The section 1782 screen—the judicial inquiry that the statute requires—is designed for preventing abuses of the right to conduct discovery in a federal district court for use in a foreign court. Once the court has determined that such abuses are unlikely, the ordinary tools of discovery management, including Rule 26, come into play; and with objections based on the fact
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II . Common Law v. Civil Law Systems
The problems that stem from the indiscriminate application of section 1782 discovery are caused, for the most part, by the differences between the common law system observed in the
United States and the civil law system, observed by most European nations.
73
A.
Common Law System:
Perhaps the most well-known attribute of the common law system, especially in the
United States, is the extremely broad pre-trial discovery process which parties to litigation enjoy.
74
The reason that the United States grants litigants such broad discovery rights is the
“premise ... that fair, effective dispute resolution requires giving litigants the legal power to obtain largely unhindered access to all information that could be relevant to the resolution of that discovery is being sought for use in a foreign court cleared away, section 1782 drops out.”
Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 597 (7th Cir. 2011).
73
“Tangible differences stem from the different origins, development, and general geist of these two systems and affect procedure (as well as substantive rules, of course) in everyday litigation.”
Lauren Ann Ross, A Comparative Critique to U.S. Courts' Approach to E-Discovery in Foreign
Trials, Duke L. & Tech. Rev., November 21 2012, at 313, 317.
74
“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
Fed. R. Civ. P. 26(b)(1).
Nikolay G. Markov
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their dispute.”
75
Giving both parties such access to each other’s information is supposed to
“make a trial less a game of blind man's bluff and more a fair contest with the basic issues and the facts disclosed to the fullest practicable extent.” 76
In the common law system, parties have the well-established right to a panel of lay jury which decides the issues of fact surrounding the case.
77 Because of the prevalent role of the jury as a fact-finder, the judge’s role is the proceeding is not very pronounced. The common law system is viewed as “adversarial,” where the private parties are the major players which move the case along, and the judge is only in the role of a referee, making sure the fight between the parties is fair and taking place according to the applicable procedural and substantive rules.
78
Another very important function of the common law judge is to insure that the lay jury is being as objective as possible when deciding on the factual issues of the case. Because the jury is made up of lay persons with no special knowledge of the law, and they are charged with making a very important decision affecting the outcome of the case, the common law has created rules of evidence which allow the judge the discretion to exclude a lot of the previously discovered evidence that may prejudice either party in the eyes of the jury.
79
75
See GARY B. BORN & PETER B. RUTLEDGE, INTERNATIONAL CIVIL LITIGATION
IN UNITED STATES COURTS 965 (5th ed. 2011).
76
Id . at 966 (quoting United States v. Proctor & Gamble Co ., 356 U.S. 677, 682-83 (1958).).
77
See OSCAR G. CHASE, American "Exceptionalism" and Comparative Procedure, 50 Am. J.
Comp. L. 277, 288 (2002).
78
See Lauren Ann Ross, A Comparative Critique to U.S. Courts' Approach to E-Discovery in
Foreign Trials, Duke L. & Tech. Rev., November 21, 2012, at 318.
79
“The common law jury system, particularly in America, has shaped evidentiary rules, many of which are devoted to ensuring that the finder of fact (the jury) properly considers what lies before them.” Lauren Ann Ross, A Comparative Critique to U.S. Courts' Approach to E-
Discovery in Foreign Trials, Duke L. & Tech. Rev., November 21 2012, at 318-19. See also
Kenneth Williams, Do We Really Need the Federal Rules of Evidence?, 74 N.D. L. Rev. 1, 7
(1998) (stating: “Almost every Federal Rule of Evidence grants discretion to the trial judge in admitting and excluding evidence.”).
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B.
Civil Law System:
In contrast, the civil law system does not generally have a pre-trial discovery procedure.
80
Instead of having the trial within a week, the civil law trial is a continuous series of meetings and motions between the parties and the judge at which evidence is continuously introduced and could last for a prolonged period of time.
81 Under civil law systems, such as in France, there are close to no exclusionary rules of evidence, therefore, a party is allowed to introduce all the evidence in its possession.
82 This difference is best explained by the lack of a lay jury in civil litigation, which removes the need to shield the fact finder from prejudicial or confusing evidence.
83
Because the judge is the ultimate decider in a civil litigation, if he or she requires further evidence from either party to help complete the picture, it is up to him or her to request it from the party in possession of it.
84
Consequently, a litigant may request the court to obtain evidence from opposing party, but only if that evidence is specifically identified.
85 In fact, many
80
“Disclosure and exchange of evidence under the civil-law systems are generally more restricted, or nonexistent.” ALI, ALI/Unidroit Principles and Rules of Transnational Civil
Procedure, Proposed Final Draft, Rule 22, Comment R–22E, p. 118 (2004).
81
“[A] civil proceeding in a civil law country is ‘actually a series of isolated meetings of and written communications between counsel and the judge in which evidence is introduced, testimony is given and procedural motions and rulings are made.’” Kenneth Williams, Do We
Really Need the Federal Rules of Evidence?, 74 N.D. L. Rev. 1, 14 (1998).
82 “There is also ‘free evaluation of the evidence’ by deciding judges. This means that in contrast to common law systems, there are virtually no exclusionary rules of evidence.” Kenneth
Williams, Do We Really Need the Federal Rules of Evidence?, 74 N.D. L. Rev. 1, 14 (1998).
83
“The most likely explanation for this distinction between civil and criminal law systems is the absence of juries in civil actions in civil law jurisdictions.” Kenneth Williams, Do We Really
Need the Federal Rules of Evidence?, 74 N.D. L. Rev. 1, 14 (1998).
84
“Unlike the United States, where the Federal Rules provide private parties with broad powers to conduct their own pretrial discovery, civil-law countries, such as France, of which Source
Perrier is a resident, view the evidence gathering process as an exercise of judicial sovereignty to be entrusted entirely to the courts.”
In re Perrier Bottled Water Litig.
, 138 F.R.D. 348, 352 (D.
Conn. 1991) (citing R. Schlesinger, Comparative Law 387–89 (4th ed. 1980).).
85
“A party to a German lawsuit cannot demand categories of documents from his opponent. All he can demand are documents that he is able to identify specifically—individually, not by
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civil law countries would view discovery requests by private party directed to opposing party as fishing expeditions and an offense to the court.
86
The civil law system is viewed as “inquisitorial,” because of the more active role of the judge.
87
Because of this complete prohibition of fishing expeditions in civil law countries, their systems have not had the chance to evolve the same evidentiary protections that are present in the United States. Therefore, if U.S. courts allow today’s expanding ESI productions to be introduced in foreign courts without considering the fundamental differences in the judicial systems, it has the potential for very harmful effects on the foreign systems.
III . Potential Problems
As the Seventh Circuit Court of Appeals acknowledged,
88
section 1782 discovery assistance can be readily abused by foreign parties, both as a way to harass their opposing parties and to undermine the foreign country’s legal system. This comparative paper focuses on the latter form of abuse - the problems that U.S. discovery assistance may cause foreign tribunals.
A.
Overwhelming foreign courts: category.” Heraeus Kulzer, GmbH v. Biomet, Inc.
, 633 F.3d 591, 596 (7th Cir. 2011) (citing
German Commercial Code & Code of Civil Procedure in English 300–01 (Charles E. Stewart trans. 2001) (translating Zivilprozeβordnung §§ 420–30)).
86
“[B]ecause many civil law countries regard the evidence-gathering process as a sovereign act, private parties are not allowed to collect evidence on their own.” Lauren Ann Ross, A
Comparative Critique to U.S. Courts' Approach to E-Discovery in Foreign Trials, Duke L. &
Tech. Rev., November 21 2012, at 313, 318.
87 “[B]y contrast, the court and the judge have a more active role in the inquisitorial civil law tradition.” Lauren Ann Ross, A Comparative Critique to U.S. Courts' Approach to E-Discovery in Foreign Trials, Duke L. & Tech. Rev., November 21 2012, at 313, 318.
88 “[D]istrict courts must be alert for potential abuses that would warrant a denial of an application to be allowed to take such discovery.”
Heraeus Kulzer, GmbH v. Biomet, Inc.
, 633
F.3d 591, 594 (7th Cir. 2011).
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One of the potential abuses that the Seventh Circuit warns district courts about is the
“danger of swamping a foreign court with fruits of American discovery ….” 89 As the legislative history makes clear, the pressure to expand the application of section 1782 mainly came from the increasing amount of international litigation and the need for the United States to give up its isolationist attitude in order to become an active member in the global community.
90
However, today we are experiencing another dramatic change in the legal field - the exponential expansion of the amount of ESI stored by parties.
91 “Between 2004 and 2007, … the average amount of data produced by American midsize companies increased fifty-fold.”
92
This explosion in discoverable ESI poses a great concern for the United States courts and is feeding a pronounced push toward changing the procedural laws in the United States.
93
The movement for a change in the laws of the United States shows that this explosion of information accumulated by litigants can have enormous impacts on the entire legal system. The problems that such flood of ESI can impose on a foreign legal system may be far worse, potentially crippling the courts.
94
As stated
89
Heraeus Kulzer, GmbH v. Biomet, Inc.
, 633 F.3d 591, 594 (7th Cir. 2011).
90
See previous Section I. A., above, for greater details.
91
“In 2005, the total amount of ESI worldwide (the “digital universe”) was 130 exabytes. In
2011, the digital universe expanded to over 1800 exabytes, enough data to fill 57.5 billion 32GB
Apple iPads.” John T. Yip, Addressing the Costs and Comity Concerns of International E-
Discovery, 87 Wash. L. Rev. 595 (2012). See also Heraeus Kulzer, GmbH v. Biomet, Inc.
, 633
F.3d 591 (7th Cir. 2011) (stating “A discovery demand in our courts might yield a haul of 30 million emails, few of which would be admissible in evidence.”).
92
Lauren Ann Ross, A Comparative Critique to U.S. Courts' Approach to E-Discovery in
Foreign Trials, Duke L. & Tech. Rev., November 21, 2012, at 313, 319 (Stating that “Stored data rose from two terabytes to one hundred terabytes on average.”) (Citing Shira A. Scheindlin,
Daniel J. Capra & the Sedona Conference, Electronic Discovery and Digital Evidence in a
Nutshell 208, West Nutshell Series, (2009).).
93 Perhaps the most significant of the movements for change in the law, searching for ways to accommodate the vast amount of discoverable ESI in today’s discovery procedures, has been the
Sedona Conference on E-Discovery. Found at: https://thesedonaconference.org/ .
94 “A litigant in a foreign court who had obtained such a haul would be unlikely to dump the whole mass of emails on that court, but if he did try to overwhelm the court with documentation the court might not be well equipped by its procedures to stem the flow.” Heraeus Kulzer, GmbH
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above, foreign legal systems, like the one in France, lack the substantial and very particular procedural laws of the United States designed to protect both the litigants and the courts from having to produce and review an overwhelming amount of unnecessary information.
Disregarding the inabilities of the foreign courts to handle the challenges of U.S. discovery can greatly decrease their efficiency and even their ability to reach a fair final decision. Allowing the use of U.S. discovery for such foreign proceedings would largely disrupt the foreign tribunal’s different, but nonetheless effective efforts.
B.
Offending foreign courts :
The possibility of offending a foreign court and the foreign government by allowing U.S. discovery to be used in a foreign litigation is perhaps even worse than disrupting their established judicial procedures. This danger is most evident when looking at foreign governments, such as France, which have openly expressed their disdain toward the U.S. discovery process.
95
One of the clearest signs that the French government has given of their disapproval to U.S. discovery is their enactment of blocking statutes,
96
which impose civil and v. Biomet, Inc., 633 F.3d 591, 594-95 (7th Cir. 2011). See also Euromepa S.A. v. R. Esmerian,
Inc.
, 51 F.3d 1095, 1105 (2d Cir. 1995) (Stating “In this way, we both interfere with French discovery practice and clog the French appeals court with the random harvest of the American discovery.”).
95
“Many countries, such as France, have taken two measures to streamline discovery demands made on their citizens by U.S. litigation. First, these countries have enacted blocking statutes that criminalize the very act of exporting information requested in the course of foreign legal proceedings. Second, these countries have signed the Hague Evidence Convention, which provides formal procedures for responding, to a limited extent, to these requests.” Pierre
Grosdidier, The French Blocking Statute, the Hague Evidence Convention, and the Case Law:
Lessons for French Parties Responding to American Discovery, HaynesBoone 3 (2011) (found at: http://www.haynesboone.com/files/Uploads/Documents/Attorney%20Publications/French_Block ing_Statute_08-24-11.pdf.)
96
“Law no. 80-538 of July 16, 1980, imposes criminal sanctions on parties that export certain categories of documents, or respond to discovery requests.” Pierre Grosdidier, The French
Nikolay G. Markov
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even criminal sanctions to French parties who provide information in assistance of U.S. discovery. Even the Supreme Court has freely ignored the voiced needs of the foreign tribunals which the discovery assistance purportedly helps.
97
Thus, not allowing district courts to consider the legal procedures of the foreign tribunal would most likely offend countries like France which do not have and do not wish to have U.S.-style discovery procedures.
98
Even worse, by counseling against conducting a comparative law analysis or a categorical requirement of foreign-discoverability, the decisions in Intel and the cases following it, have effectively taken away the district courts’ ability to consider the foreign legal procedures and mitigate some of the harm that is caused.
99
C.
Harming the “twin aims” of §1782:
Such blatant disregard for the foreign tribunal’s procedures is more than likely to create animosity toward United States courts as opposed to an environment of cooperation and mutual assistance.
100
This current practice of offending foreign tribunals and disrupting their procedures
Blocking Statute, the Hague Evidence Convention, and the Case Law: Lessons for French Parties
Responding to American Discovery, HaynesBoone 3 (2011) (found at: http://www.haynesboone.com/files/Uploads/Documents/Attorney%20Publications/French_Block ing_Statute_08-24-11.pdf.)
97
In Intel Corp. v. Advanced Micro Devices, Inc., the Supreme Court allowed a discovery order to be issued for use in a proceeding before the EC even though the “European Commission has stated in amicus curiae briefs to this court that it does not need or want the District Court’s assistance.” 542 U.S. 241, 265 (2004).
98
“[N]ot construing the statute as including the requirement [for foreign-discoverability] would allow parties to circumvent foreign law and procedures by granting discovery that the foreign jurisdiction does not allow. This would put United States courts in direct conflict with foreign tribunals and legislatures and give offense to foreign sovereigns.” E. Morgan Boeing, Majority and Dissent in Intel: Approaches to Limiting International Judicial Assistance, 29 Hastings Int'l
& Comp. L. Rev. 381, 385 (2006).
99
See Section I. B., above.
100 “U.S.-style discovery offends the sovereignty of civil-law countries where court officers play an inquisitorial role and control the search for evidence.” Pierre Grosdidier, The French Blocking
Statute, the Hague Evidence Convention, and the Case Law: Lessons for French Parties
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is not doing much to further the “twin aims” of section 1782. Under the current extremely liberal application of section 1782 discovery, neither goal of “providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance to our courts” is likely to be achieved.
101
Overwhelming the foreign tribunal is neither likely to increase the efficiency or efficacy of the litigation, nor a requesting party’s chances for a favorable final resolution of the issue. Indeed, the only thing that is being achieved by the established policy of disregarding the foreign procedures is to turn off the entire foreign government to the idea of assisting the U.S. courts.
IV . Recommended Approach
Aerospatiale was a case litigated in the United States, but involved the production of information that was located in France.
102
As the Ninth Circuit Court stated, the district court was correct to balance “France's interest in controlling its judicial system against the American interest in full pretrial discovery.” 103
One of the reasons why the 9th Circuit allowed the discovery of information located in France, was that the “intrusion on French sovereignty is minimal because no proceedings will take place on French soil.” 104 However, in the application of section 1782, the proceedings do take place on foreign soil, and therefore the foreign court’s interest in controlling its judicial process would likely be overwhelming.
Responding to American Discovery, HaynesBoone 1, 2 (2011) (found at: http://www.haynesboone.com/files/Uploads/Documents/Attorney%20Publications/French_Block ing_Statute_08-24-11.pdf.)
101 Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 252 (2004) (Citing the underlying
Ninth Circuit Court opinion.).
102
Societe Nationale Industrielle Aerospatiale v. United States Dist. Court, 788 F.2d 1408 (9th
Cir. 1986).
103
Id. at 1411 (9th Cir. 1986).
104
Id .
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In looking for a solution to the problem of disrupting or offending a foreign court by allowing section 1782 discover, even though a drastic change in the statutory text would be highly effective, at this time such a resolution is perhaps unrealistic.
105
Furthermore, the Supreme
Court is not likely to change its recently stated interpretation of the statute.
106
However, appellate court decisions have continuously reminded district courts that, even though their discretion is not as great in the decision to deny the discovery request, they still have largely unbridled control over drafting the ultimate discovery orders.
107
Considering this clear direction to district courts, perhaps a more feasible solution would be for them to follow the established precedent and liberally grant discovery requests under section 1782, while also engaging in comparative law analysis and balancing of the factors from
Intel when crafting and limiting the discovery order itself. Engaging in a comparative law analysis and balancing would insure that the benefits of the assistance to the foreign tribunal outweigh the burdens posed by the discovery productions.
In their comparative law analysis and deliberation of the balancing factors, district courts should consider: the procedure of the foreign legal system where the evidence will be introduced, as well as the view of the foreign government toward the US discovery process, expressed not
105 “[T]here appears to be no reason for seriously considering, at this time, any statutory amendments.”
Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241, 265 (2004) (footnote
17).
106
“The dissent sees a need for “categorical limits” to ward off “expensive, time-consuming battles about discovery. … That concern seems more imaginary than real.” Id .
107
“[B]ecause ‘section 1782 gives the court complete discretion in prescribing the procedure’ for parties to follow in producing requested materials, Senate Report at 3789, we think that it is far preferable for a district court to reconcile whatever misgivings it may have about the impact of its participation in the foreign litigation by issuing a closely tailored discovery order rather than by simply denying relief outright.” Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1101 (2d
Cir. 1995). See also Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 595 (7th Cir. 2011)
(stating: “The discovery sought may be excessive, but excessive under the discovery standards set forth in the Federal Rules of Civil Procedure rather than under section 1782.”).
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only through authoritative government proclamations, but also through statements to the court and laws designed to protect from U.S. discovery.
108
CONCLUSION
The potential problems that the overly-liberal application of section 1782 discovery can cause are only becoming more pronounced by the ferocious explosion of the amount of ESI that international companies store, and especially companies in the United States. Those problems are largely due to the difference between common law systems, such as in the United States, and civil law systems, such as in France. Because of those drastic differences in the way the systems function, allowing parties to use the largely unbridled discovery procedures of the United States in order to introduce the large amounts of evidence produced into a system with little to no safeguards for it, would likely lead to disruption of the foreign judicial process and even cause the foreign government to take offense. Allowing those problems to occur only hurts the established goals of section 1782 by turning off foreign countries to the idea of adopting similar procedures as exist in the United States. I advocate that district courts should conduct a comparative law analysis of the foreign tribunal’s procedures and evaluate the factors established by the Supreme Court in Intel , because it would be the path of least resistance considering the current policy of the United States.
108
As was the case in Intel Corp. v. Advanced Micro Devices, Inc.
, 542 U.S. 241 (2004) and in the case of French litigation where the blocking statutes apply.
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