Fishing for the smoking gun: the need for British courts to grant American style extraterritorial discovery requests in U.S. industry-wide tort actions.

• Author: Coelho-Adam, Y. Daphne

ABSTRACT

Industry-wide tort litigation, such as tobacco and gun litigation, poses a new problem for extraterritorial discovery. These suits allege conspiracies on the part of the tobacco and gun industries to conceal the dangers of their products from the public. Much of the evidence needed to prove the industries' knowledge is in their possession. These industries are international with companies located in the United Kingdom. Under U.S. discovery law the evidence is discoverable, but such is not the case under British discovery law. Therefore, the evidence and witnesses located in the United Kingdom are outside the grasp of U.S. plaintiffs. The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters establishes procedures for obtaining evidence abroad but does not offer any relief to U.S. plaintiffs seeking evidence in the United Kingdom in industry-wide tort litigation.

This note explores the problems faced by U.S. litigants seeking evidence in the United Kingdom for use in industry-wide tort litigation in the United States. It includes an examination of U.S. and British discovery procedures and compares and contrasts them. It also examines the applicable provisions of the Convention and the Evidence Act of 1975 in the United Kingdom which implemented the Convention in that country. This note identifies the problems experienced by U.S. plaintiffs in tobacco and gun litigation. It suggests a solution to extraterritorial discovery disputes between the United States and the United Kingdom in the form of an amendment to the Evidence Act of 1975 to allow British courts greater discretion in granting U.S. discovery requests in industry-wide tort litigation.

1. INTRODUCTION

   Imagine that you are a U.S. litigant suing a British gun manufacturer for the negligent manufacture of a gun that resulted in the death of your child.(1) Your claim alleges that the gun manufacturer was aware of a safety mechanism that could be installed in the gun at the time of manufacture that would reduce the chances of accidentally discharging the gun. In fact, the manufacturer of the specific gun involved was not the only gun manufacturer aware of this safety mechanism. You suspect that the entire gun industry decided to conceal the information about the safety mechanism because it would be too costly to install, would raise gun prices, and would result in reduced gun sale profits.

   In order to prove your claim, you must gain access to documents held by the manufacturer in the United Kingdom. The manufacturer is physically in possession of all the documents you need to prove your claim. You have one problem. You will be unable to obtain these documents because the British courts will not grant requests for discovery that lack specificity, and you do not know exactly which documents you need. Thus, you will have no case without these industry documents and research files. By contrast, most of the documents would be available under the Federal Rules of Civil Procedure (Federal Rules); however, because the manufacturer is not located in the United States, the Federal Rules do not apply.

   This note addresses the problem of extraterritorial discovery disputes between the United States and the United Kingdom in the new wave of industry-wide tort litigation. Differing conceptions of, and approaches to, discovery by the United States and the United Kingdom have resulted in disputes when litigants in the United States seek evidence located in the United Kingdom. In an age of globalization, the advent of tobacco litigation and the rising threat of gun litigation have opened the door to more conflict as corporations manipulate the international system to strategically avoid disclosure of damaging documents.

   Part II of this Note lays out the basic procedural principles of discovery in the United States as prescribed by the Federal Rules and contrasts them to the discovery procedures utilized in the United Kingdom. Part III explores the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, the most significant current international convention on extraterritorial discovery. In particular, this section examines the key provisions of the Convention, as well as the international policies behind the Convention, to better understand its role in extraterritorial discovery disputes. Part IV will focus on the problem of obtaining evidence in the United Kingdom for use in litigation in the United States. Particular attention is given to the U.S. approach to extraterritorial discovery and its implementation of the Convention, as well as the United Kingdom's approach in response to discovery requests from the United States. Part V will explore the new challenges presented as industry-wide tort litigation explodes and goes international. This section will focus primarily on the experience, and outcomes of tobacco litigation as an example of what could be expected in future litigation. It will also explore the lessons learned from tobacco litigation and the methods corporate defendants have used to manipulate the system to avoid disclosure. Finally, Part VI will examine the problems associated with employing existing mechanisms for extraterritorial discovery and will suggest a possible solution to resolve the discovery conflict: an amendment to the United Kingdom's Evidence Act of 1975 to allow courts greater discretion in executing discovery requests from the United States.

2. DIFFERING CONCEPTS OF DISCOVERY IN LITIGATION IN THE UNITED STATES AND THE UNITED KINGDOM

   The United States and the United Kingdom have different views on the limits of discovery in litigation. These differences range from what information is discoverable and when, if at all, it is discoverable. Although discovery in the United States is derived from procedure in the United Kingdom, the Federal Rules have greatly expanded upon common law notions of discovery.(2) In fact, the liberal U.S. system of discovery has come under attack from both common law and civil law countries.(3) Though the same word, "discovery," is used to describe both the U.S. and British systems of trial disclosure, the meanings are very different.

   A. Liberal Discovery in the United States

   The United States has the most liberal discovery procedures in the world.(4) Rule I of the Federal Rules establishes that the rules are to "be construed and administered to secure the just, speedy, and inexpensive determination of every action."(5) Therefore, the Federal Rules are read liberally to allow the litigants to engage in a "fair" procedure, with limited surprise.

   Most of the information sought by litigants is easily discoverable in the United States. Most discovery occurs pretrial.(6) Rule 26(b)(1) allows parties to "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...."(7) It is important to recognize that the relevance requirement during discovery is more broad than the relevance requirement at trial.(8) Relevance at the discovery stage focuses on the general subject matter, whereas at trial relevance is limited to the specific issues of the particular case.(9) Most information a party seeks in discovery will conform to the lenient relevance standard of Rule 26(b)(1).

   Rule 26(b)(1) does not require that the information sought during discovery be admissible at trial, but only that it appear "reasonably calculated to lead to the discovery of admissible evidence."(10) The fact that the discoverable evidence need not be admissible at trial makes the discovery process in the United States quite broad. What British and other European courts refer to as "fishing" expeditions is an accepted component of American civil procedure.(11) It is commonplace for parties to use discovery to formulate the issues of the action and to uncover leads on additional evidence for their case.(12) In fact, the Federal Rules are designed to achieve such goals.

   Discovery in the United States is obtained by way of five different categories of disclosure: automatic disclosure, depositions, interrogatories, production and inspection of documents and property, and requests for admissions.(13) With the exception of automatic disclosure, these modes of discovery are also found in common law judicial systems.(14) Because of Rule 26(b)(1), however, their application is far more liberal in the United States than in any other common law jurisdiction.(15)

   Automatic disclosure is a distinctly American creation.(16) It is a formulation of what has been called "court-ordered interrogatories."(17) Rule 26(a)(1) mandates the disclosure of four categories of information before any discovery requests are made: the names of individuals likely to have discoverable information and means of contacting them, if known; a copy of or description and location of all documents in possession of the party; a computation of any category of damages; and any insurance agreement which may satisfy a judgment.(18) The names and documents disclosed depend on the specificity of the pleadings or the particularity with which the facts are pled.(19) Therefore, very specific pleadings can result in a great deal of automatic disclosure.

   There has been a great deal of debate over the adoption of Rule 26(a)(1).(20) Proponents of the rule focus primarily on its ability to move cases forward more quickly.(21) They find support in Rule 1, which sets out the goal of the Federal Rules: the "speedy, and inexpensive determination of every action."(22) The second argument proponents of Rule 26(a)(1) make is that it will reduce the expense of litigation.(23) A primary aim of automatic disclosure is to help parties avoid costly, expansive disclosure for the purpose of "fishing" for information, because the parties will have essential information disclosed to them at the onset of the litigation.(24) As a result, issues will be narrowed more swiftly.(25) Furthermore...