Foreign Discovery Issues

In cases involving allegations of an antitrust conspiracy, it is not
uncommon for a court in the United States to encounter issues relating to
foreign discovery. For instance, evidence in actions alleging worldwide
price-fixing cartels is frequently located abroad. In such situations, courts
must decide the procedural manner in which foreign discovery may be
obtained and the location where discovery will take place. The reverse
situation – foreign litigants seeking discovery in the United States – is less
common but does sometimes arise as well, requiring courts to consider
United States and foreign law issues. Although less common, a developing
area of the law involves discoverability of submissions to and decisions of
foreign governmental authorities that may have investigated the same
conduct at issue in a U.S. case. Most countries do not have pretrial
discovery procedures that are as broad as those available in the United
States and, accordingly, attempts to gather discovery in foreign nations
may be met with hostility, both from the party to whom the discovery is
directed, and the sovereign nation of which the party is a citizen. The
various issues (and potential pitfalls) of foreign discovery are discussed in
this chapter.
A. Obtaining Evidence Located Abroad for U.S. Proceedings
1. Method of Discovery
a. Merits Discovery
The threshold issue regarding discovery from foreign defendants is
whether discovery should be taken under the Federal Rules of Civil
Procedure, pursuant to the Hague Evidence Convention (the
“Convention”),1 or pursuant to the laws of the foreign nation. The Civil
1. The Hague Convention on the Taking of Evidence Abroad in Civil or
Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444
192 Antitrust Discovery Handbook
Rules allow for considerably broader discovery than do the laws of most
other nations, so typically the party seeking discovery will argue for the
application of the Civil Rules, while the party opposing discovery will
argue for the narrower Convention or foreign rules to apply.
In Societe Nationale Industrielle Aerospatiale v. District Court ,2 the
United States Supreme Court held that discovery under the Hague
Evidence Convention is not mandatory because the Convention is
“intended as a permissive supplement, not a pre-emptive replacement,”
for other methods of discovery.3 Because Convention procedures can be
“unduly time consuming and expensive, as well as less certain to produce
needed evidence than direct use of the Federal Rules,” their use may be
“inconsistent with the overriding interest in the ‘just, speedy, and
inexpensive determination’ of litigation in our courts.”4 Nonetheless, the
Court explained, foreign litigants should receive “a full and fair
opportunity to demonstrate appropriate reasons for employing Convention
procedures in the first instance, for some aspects of the discovery
process.” 5 Aerospatiale therefore entrusts trial courts with the discretion
to determine, given the circumstances of each case, which method of
discovery is appropriate.6
While Aerospatiale did not explicitly endorse a presumption against
use of the Convention, the majority of lower courts have interpreted the
language of its holding to require parties advocating for the use of
Convention procedures to meet the burden of demonstrating how and why
those procedures are necessary. 7 Parties satisfy this burden by
(codified at 28 U.S.C. § 1781) (entered into force with respect to the
United States on Oct. 7, 1972). The Hague Evidence Convention was
drafted to facilitate greater cooperation between civil and common law
traditions in evidence-gathering for private lawsuits. See id.; see also
Societe Nationale Industrielle Aerospatiale v. U.S. District Ct., 482 U.S.
522, 530-31 (1987).
2. 482 U.S. 522 (1987).
3. Id. at 536.
4. Id. at 542-43.
5. Id. at 547.
6. Id. at 546 (“The exact line between reasonableness and unreasonableness
in each case must be drawn by the trial court, based on its knowledge of the
case and of the claims and interests of the parties and the governments
whose statutes and policies they invoke.”).
7. See, e.g., In re Automotive Refinishing Paint Antitrust Litig., 358 F.3d 288,
305 (3d Cir. 2004); Metso Minerals v. Powerscreen Int’l Distrib., 2007 U.S.
Dist. LEXIS 51010, at *4-5 (E.D.N.Y. 2007) (quotation omitted); In re

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