INTRODUCTION II. COMPARISON OF UNITED STATES AND CML LAW DISCOVERY REGIMES A. The United States' Broad Discovery Regime B. Limited Discovery in Civil Law Countries III. DISCOVERY UNDER THE HAGUE CONVENTION VERSUS THE FEDERAL RULES OF CML PROCEDURE A. Federal Rules of Civil Procedure B. The Hague Convention IV. CONCERN WITH THE BREADTH OF U.S. DISCOVERY: BLOCKING STATUTES AND THE EUROPEAN DATA DIRECTIVE V. CHOOSING BETWEEN THE HAGUE CONVENTION AND THE FEDERAL RULES OF CIVIL PROCEDURE A. Pre-Aerospatiale District Court Analysis B. Aerospatiale C. Post-Aerospatiale District Court Analysis VI. THE LIMITATIONS PLACED ON DISTRICT COURTS IN AEROSPATIALE VII. IMMEDIATE REVIEW OF DISTRICT COURT DISCOVERY DECISIONS A. Writ of Mandamus B. Judicially Created Exception to Finality VIII. CONCLUSION I. INTRODUCTION
Prior to the Supreme Court's decision in Societe Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa, (1) the district courts struggled with how to conduct discovery against foreign litigants in U.S. courts. In 1987, the Supreme Court largely eliminated this struggle within the district courts by rendering its decision in Aerospatiale. The decision granted wide discretion to the district courts to make these discovery decisions, quelling the fears of district court judges who, prior to Aerospatiale, proceeded cautiously with regard to such decisions. The grant of discretion calmed the previous chaotic nature of the district court decisions, but it did so without guiding the district courts on how to properly balance the interests of each party.
In Aerospatiale, the Supreme Court did offer a five-factor balancing test for deciding whether to proceed under the Federal Rules of Civil Procedure (Federal Rules) or under the Hague Convention on Taking Evidence in Civil or Commercial Matters (Hague Convention). (2) However, the Aerospatiale test (3) was not a source of guidance; rather it simply added to the arsenal of convoluted and difficult factor tests that the district courts had already created and had been struggling to employ.
Many scholars have written about the flaws in the Aerospatiale decision. (4) These scholars focus on the wide discretion granted by the Supreme Court as well as the minimal guidance the decision provides. However, while the Aerospatiale decision granted the district court wide discretion with regard to discovery against foreign litigants, such discretion was not granted without significant limitations. (5) The decision makes clear that when exercising their discretion, the district courts must exercise special vigilance to protect foreign litigants from unduly burdensome discovery, supervise pre-trial discovery particularly closely, and carefully consider objections to abusive discovery voiced by foreign litigants. (6)
By focusing on the discretion granted to the district courts in the Aerospatiale decision, current scholarship diverts attention away from the distinct limits that the Supreme Court placed on lower courts' decision making power when conducting discovery against foreign litigants. When a district court disregards these important though currently overlooked limitations, it engages in a clear abuse of discretion, which warrants immediate review by an appellate court. Immediate review of such discovery decisions is necessary because it will create greater uniformity with regard to these decisions and provide the district courts with necessary guidance. Furthermore, the possibility of immediate reversal of district court discovery decisions will generate incentives for properly weighing comity concerns and will deter district courts from improperly favoring the Federal Rules over the Hague Convention.
The history of district court decisions post-Aerospatiale proves that the incentives and deterrents created by immediate appellate review are necessary to curb clear abuses of discretion. When civil litigation in U.S. district courts involves foreign parties or when evidence is sought from foreign nonparties living in countries with stricter-than-U.S. privacy laws, the U.S. courts are often faced with the difficult decision of whether to conduct discovery under the Hague Convention or the Federal Rules. (7) This decision creates a tension between the principles of lexfori and international comity. (8)
The principle of lexfori gives the court control of its own procedure and therefore permits U.S. district courts to choose to proceed under the Federal Rules. (9) The principle of comity, on the other hand, is "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." (10) Thus, based on respect for comity, a court should not provide a reason to violate the laws of another country. (11) However, the case law demonstrates that post-Aerospatiale, when faced with choosing between enforcing its own procedure--/lex fori--and proceeding through discovery with due regard for the laws of other countries--comity--U.S, district courts almost always proceed under the Federal Rules regardless of whether it violates foreign laws. (12)
This almost exclusive reliance on the Federal Rules has occurred because the factor tests are confusing, (13) discovery under the Federal Rules is presumed to be more efficient, (14) and the district courts' discretion has been erroneously deemed limitless. (15) However, due to the advent of electronic discovery (e-discovery), the primary rationale for proceeding under the Federal Rules--efficiency--has been eroded, making the Hague Convention a more viable discovery mechanism. The trend towards e-discovery raises the frequency of conflict between U.S.-style discovery procedures and other more limited discovery procedures, namely the Hague Convention, preferred by civil law countries. For example, electronically stored information (ESI) extends the reach of discoverable information under the Federal Rules, which conflicts with the EU's continuous commitment to data privacy protections that far exceed the privacy protections under U.S. law. (16) Yet, while U.S.-style discovery has historically been more efficient than discovery under the Hague Convention, e-discovery makes U.S.-style discovery less efficient because of the enormous amount of discoverable ESI, thereby eroding the primary rationale for proceeding under the Federal Rules. (17)
This Note argues that district court decisions with regard to how to conduct discovery against foreign litigants should be immediately appealable when the court abuses its discretion by failing to abide by the limitations set forth in Aerospatiale. Immediate review is necessary to curb clear abuses of discretion and protect all litigants, especially given that e-discovery increases the risk of conflicts between U.S.-style and civil law country discovery procedures. When a district court engages in clear abuses of discretion, litigants should utilize writs of mandamus to seek immediate review. Furthermore, given that the risks to parties and their lawyers who are faced with discovery orders that create a clear conflict of laws has proven to be real rather than theoretical, (18) this Note advocates for a judicially created exception to the general rule that decisions must be final before there is an appeal as of right under 28 U.S.C. [section] 1291 (19) to create another avenue for immediate review of district court discovery orders.
This Note proceeds in six parts. Part II discusses the general differences between the United States and civil law countries with regard to civil discovery procedures. Comparing the two systems demonstrates why conflicts arise when foreign litigants are subject to U.S.-style discovery under the Federal Rules rather than the Hague Convention, which is the preference of most civil law countries. This Note argues that the differences in court procedures and privacy laws create the primary tension between the two discovery procedures. Part III discusses the differences in discovery under the Hague Convention and the Federal Rules, demonstrating that the amount of discoverable information under the Federal Rules is exponentially greater than the potentially discoverable information under the Hague Convention. This Note contends that the Hague Convention is still the primary way for the United States to respect the laws of foreign civil law countries, which have placed significant limitations on the breadth of discovery. Part IV addresses two barriers that have been erected to curb U.S.-style discovery: blocking statutes and the European Privacy Directive. These obstacles to discovery support the contention that foreign countries are concerned with U.S.-style discovery and its lack of respect for the principle of comity. Part V addresses how the district courts have dealt with choosing between the Federal Rules and Hague Convention discovery regimes when the issue has been raised both pre- and post-Aerospatiale.
Finally, Part VI argues that immediate review of district court discovery decisions is necessary to curb clear abuses of discretion improperly favoring the Federal Rules over the Hague Convention. This Part argues that a writ of mandamus is still obtainable post-Aerospatiale because of the limitations that the Supreme Court placed on the district courts' discovery decisions. It then calls for the creation of a judicially created exception to the finality rule to create another avenue for immediate review in light of the various conflicts that will inevitably arise due to the advent of e-discovery.
COMPARISON OF UNITED STATES AND C1VIL LAW DISCOVERY REGIMES
The United States allows for rigorous discovery as compared to civil law discovery regimes. These differences arise primarily due to differing views with regard...
Limitations on the U.S. District Courts' discretion: immediate review of post-Aerospatiale discovery decisions.
|Author:||English, Robyn R.|
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