Chapter II. Discovery Under the Federal Rules of Civil Procedure

• Pages: 5-26

CHAPTER II

DISCOVERY UNDER THE FEDERAL RULES OF

CIVIL PROCEDURE

A. Introduction

The legal provisions governing discovery in federal courts are set forth

in Rules 26 to 37 of the Federal Rules of Civil Procedure.1 The advent of

these discovery procedures has been described as “one of the most

significant innovations of the Federal Rules of Civil Procedure”2 and a

“striking and imaginative departure from tradition.”3 The pretrial discovery

rules are intended to advance fact finding and reduce the role of surprise at

trial, without the costs and delays of judicial involvement.

In Société Nationale Industrielle Aérospatiale v. U.S. District Court,4

the Supreme Court upheld the application of these discovery rules to the

collection of evidence from foreign parties, determining that, at least for

litigants within a federal court’s personal jurisdiction, the Hague Evidence

Convention5 does not require exclusive reliance or even reliance in the first

resort on the Federal Rules of Civil Procedure. Having established the

option to use the Federal Rules of Civil Procedure discovery procedures, the

Court cautioned against abuses and admonished federal courts to take care

to demonstrate due respect for any special problem confronted by the

foreign litigant due to its nationality or the location of its operations, and for

any sovereign interest expressed by a foreign state.

Federal courts routinely compel discovery against foreign litigants

under the Federal Rules of Civil Procedure.6 The open questions for party

1. The discovery rules have been amended several times since the adoption of

the Rules in 1938. The rule-making authority and amendment procedure is

set forth at 28 U.S.C. §§ 2071-2074.

2. Hickman v. Taylor, 329 U.S. 495, 500 (1947).

3. Advisory Committee’s Explanatory Statement concerning Amendments of the

Discovery Rules, 48 F.R.D. 487, 487 (1969).

4. 482 U.S. 522, 541 (1987).

5. Hague Convention on the Taking of Evidence Abroad in Civil and

Commercial Matters, 23 U.S.T. 2555; T.I.A.S. 7444; 847 U.N.T.S. 231;

reprinted in 8 I.L.M. 37 (1969) [hereinafter Hague Evidence Convention].

6. See, e.g., In re Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288 (3d Cir.

2004); Whiteman v. Fed. Republic of Austria, 2002 WL 31368236, at *7

6 Obtaining Discovery Abroad

discovery relate to issues not addressed by Aérospatiale, including the

appropriate limitations on jurisdictional discovery, whether different

standards apply to depositions of foreign litigants as opposed to the “less

intrusive” document demands, interrogatories and requests to admit, and

what limitations are imposed by the country and by the greater potential for

discovery abuse applicable to foreign parties. Third party discovery

presents a number of distinct issues.

B. The Scope of Discovery: Relevancy

Under Federal Rule of Civil Procedure 26(b)(1), parties generally may

obtain discovery without leave of the court regarding any nonprivileged

matter that is relevant to the claim or defense of any party. Moreover, for

good cause shown, the court may order discovery of any matter relevant to

the subject matter involved in the action.7 Relevant information need not be

admissible at trial if the discovery appears reasonably calculated to lead to

the discovery of admissible evidence. The broad scope of discovery under

the Federal Rules of Civil Procedure thus may encompass testimony and

documents beyond materials located in the United States.

As most foreign jurisdictions employ a more narrow standard of

relevancy, the broad interpretation given by U.S. courts has led to conflicts

with foreign countries when U.S. parties seek to obtain evidence for use in

U.S. litigation. The manner in which discovery regarding foreign markets

may be relevant to domestic antitrust claims is illustrated by United States

(S.D.N.Y. Oct. 21, 2002) (“Conducting discovery pursuant to the Federal

Rules of Civil Procedure is proper when a defendant is a foreign litigant.”),

vacated, 72 Fed.Appx. 850, 2003 WL 21890843 (2d Cir. Aug. 6, 2003);

Odone v. Croda Int’l PLC, 950 F. Supp. 10, 12 (D.D.C. 1997) (“Where the

American federal district court has in personam jurisdiction over a foreign

national, corporate entity or an individual, it is not required . . . to defer to

international comity . . . The court can, and should, mandate compliance by a

foreign party with Rules 26, 33, 34 and 36 of the Federal Rules of Civil

Procedure for the giving of oral depositions, answering interrogatories, the

producing of documents and records, and responding to requests for

admissions.”) (quoting Work v. Bier, 106 F.R.D. 45, 55-56 (D.D.C. 1985)).

7. Prior to the 2000 amendments, Rule 26(b)(1) provided that a party could

obtain discovery regarding any matter relevant to the subject matter involved

in the action without an order of the court. The rule change was intended to

“involve the court more actively in regulating the breadth of sweeping or

contentious discovery.” FED. R. CIV. P. 26(b)(1) advisory committee notes

(2000 Amendments).