France

• Pages: 197-226

197

CHAPTER X

FRANCE

A. Introduction

In 1972, France signed the 1970 Hague Convention on the Taking of

Evidence Abroad in Civil and Commercial Matters (the Hague Evidence

Convention).1 Since October 1974, when the Hague Evidence Convention

came into force in France, successive French governments have taken the

position that its procedures are the only lawful means by which a party can

obtain evidence located in France for use in a litigation outside of the

European Union.2 For parties in U.S. litigation, the Hague Evidence

Convention is still officially the only means recognized by the French

government and courts for gathering evidence in France.

Since the U.S. Supreme Court’s decision in Société Nationale

Industrielle Aérospatiale v. United States District Court,3 however, it

appears U.S. litigants have been less likely to rely upon the Hague

1. Convention on the Taking of Evidence Abroad in Civil and Commercial

Matters, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, reprinted

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

2. See, e.g., Brief on Behalf of the French Government, Messerschmitt

Bolkow Blohm v. Walker, 483 U.S. 1002 (1987) (No. 85-99); Brief of

Amicus Curiae the Republic of France in Support of Petitioners, Société

Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S.

522 (1987) (No. 85-1695), 1986 WL 727501. On May 28, 2001, the

European Union adopted Council Regulation (EC) No. 1206/2001 of 28

May 2001 on Cooperation Between the Courts of the Member States in the

Taking of Evidence in Civil or Commercial Matters, 2001 O.J. (L 174) 1,

which provides for additional cooperation between European Union

member states regarding obtaining evidence for use in civil and

commercial proceedings. This rule came into force on January 1, 2004, and

now supplements the Convention, at least with regard to evidence

gathering by parties in European Union member states. For a discussion of

Regulation 1206/2001, see Arnaud Nuyts & Joe Sepulchre, Taking of

Evidence in the European Union under EC Regulation 1206/2001, 5 BUS.

L. INT’L 305 (2004).

3. 482 U.S. 522 (1987).

Obtaining Discovery Abroad

198

Evidence Convention procedures when seeking evidence from parties

located overseas. 4 France’s Central Authority, Bureau de l’Entraide

Judiciaire Internationale at the Ministry of Justice, reported that it received

only seventy-seven requests from U.S. courts between 2009 and 2013 for

authorization to take evidence in France. 5 Nevertheless, despite the

Court’s ruling in Aérospatiale, letters rogatory are the only means of

obtaining evidence from unwilling third parties located in France and it is

prudent to follow the Hague Evidence Convention procedures even when

taking evidence from willing third parties, particularly if the witness is not

a U.S. national. Indeed, in view of the increase in U.S. litigation involving

foreign parties, witnesses, and subject matters, the relevance of the Hague

Evidence Convention is likely only to increase and U.S. lawyers seeking

evidence in France should be prepared to proceed according to its

strictures.

This summary will review the various methods of taking evidence in

France under the Hague Evidence Convention and the practical aspects of

such discovery procedures. It will also touch on some recent developments

in data protection law and consider their possible implications for U.S.

parties seeking to obtain evidence in France.

B. France’s Hostility to U.S.-Style Discovery Procedures

1. French Domestic Practice

French domestic practice is driven by the principe de contradictoire,

i.e., the principle that each party should be given the opportunity to address

every fact and argument in dispute. Although French domestic practice

provides for various forms of evidence gathering, these forms of evidence

gathering are closely supervised by the court so as to guarantee the

principe de contradictoire and are much more limited than those found in

U.S. litigation.

4. In Aérospatiale, the court held that the Hague Evidence Convention

procedures were optional and did not preempt the U.S. Federal Rules of

Civil Procedure with regard to the taking of discovery from foreign

litigants. Id. at 539-40.

5. France’s Central Authority received thirty-one requests in 2009, sixteen

requests in 2010, eleven requests in 2011, fourteen requests in 2012, and

five requests in 2013. See French Response to the Questionnaire of

November 2013 relating to the Hague Convention of 18 March 1970 on

the Taking of Evidence Abroad in Civil or Commercial Matters, HCCH,

available at www.hcch.net/index_en.php?act=publications.details&pid=

6043&dtid=33.