Sovereignty on our terms.

AuthorIontcheva, Jenia A.

In re Vitamins Antitrust Litigation, 120 F. Supp. 2d 45 (D.D.C. 2000).

In an era of economic globalization, U.S. judges must increasingly consider the international consequences of their decisions, even when those decisions are purely procedural or managerial. A salient example of the need for such consideration is the dispute over the procedures for conducting discovery of evidence located abroad:(1) U.S. judges have been eager to employ the Federal Rules of Civil Procedure when ordering discovery, while foreign nations and defendants have insisted that the United States comply with its treaty obligations and employ the Hague Evidence Convention.(2) In a recent decision, In re Vitamins Antitrust Litigation, the District Court for the District of Columbia intervened in this debate by ordering that the Federal Rules be used not only for discovery on the merits, but also for discovery necessary to resolve a dispute over the court's jurisdiction.(3) The court extended a questionable line of precedents that displaced the Hague Convention in the management of discovery in federal courts.

Part I of this Case Note reviews the background and substance of the D.C. court's ruling. Part II criticizes the decision for its inattentiveness to fundamental due process principles, sovereignty considerations, and U.S. treaty commitments. Part III analyzes the potential repercussions of the decision and offers an approach aimed at averting these repercussions.

Upon the urging of practitioners dissatisfied with the burdensome and unreliable process for obtaining discovery of evidence located abroad, a group of states participating in the Hague Conference on Private International Law negotiated the Hague Evidence Convention as a means to facilitate the process of extraterritorial discovery. In place of a patchwork of inconsistent and complicated procedures that varied from state to state,(4) the Hague Convention set minimum standards that harmonized the procedures for extraterritorial discovery used in civil-law and common-law countries.(5) The Hague Convention was initiated by the U.S. delegation(6) and was duly signed and ratified by the United States.(7)

In response to inconsistent treatment of the Convention by lower courts, the Supreme Court addressed the Convention's applicability to U.S. cases in Societe Nationale Industrielle Aerospatiale v. United States District Court.(8) The Court held the Convention to be "optional" and established a balancing test for trial courts to follow in determining whether to use the Hague Convention or the Federal Rules for obtaining evidence from abroad.(9) Lower courts were directed to evaluate the facts of the case (such as the burden that discovery imposed on the defendant), the sovereign interests involved, and the effectiveness of the Convention in facilitating the desired discovery.(10) Aerospatiale has been criticized by scholars at length for its inherent bias against foreign parties,(11) and practice has confirmed their suspicion that the Aerospatiale test disfavors the Hague Convention. Lower courts relying on the test have almost universally found that the Federal Rules were the proper vehicle for obtaining discovery abroad.(12)

In Vitamins, the District Court for the District of Columbia not only joined other courts in conducting the balancing test in favor of the Federal Rules, but also extended Aerospatiale to cases of jurisdictional discovery.(13) The Vitamins defendants, most of whom were multinational companies based in Europe, were accused of violating antitrust laws by conspiring to fix the price of vitamins sold on the U.S. market. They contested the court's personal jurisdiction over them,(14) so the court ordered discovery to resolve the issue. The court found that the choice of procedures for conducting jurisdictional discovery abroad was a question of first impression in the District of Columbia. The Aerospatiale decision was not found to be controlling because it involved discovery on the merits,(15) whereas the Vitamins case concerned pre-jurisdiction discovery, relating only to the defendants' contacts with the forum.(16) In the absence of evidence of such contacts, the defendants' claim not to be subjected to a foreign forum's rules was much weightier and the case for the application of the Hague Convention much stronger. This argument, however, was ultimately rejected by the Vitamins court.

The court opined that the sovereign interests of foreign nations were not greater in the pre-jurisdiction than in the post-jurisdiction stage and that the court inherently possessed jurisdiction to determine its own jurisdiction. It decided that first resort to the Hague Convention would be inappropriate and fell back on the Aerospatiale balancing test, despite the earlier acknowledgment that the two cases were different in critical respects. After examining the litigants' interests, sovereignty concerns,(17) and the efficiency of the Hague Convention, the court ruled that the Federal Rules should be used to obtain extraterritorial discovery pertaining to jurisdiction.

II

The extension of Aerospatiale to jurisdictional discovery is plagued by a logical inconsistency underlying all orders for discovery at the prejurisdiction stage. In the absence of an established link between the defendant and the forum, the court has no authorization to exercise its power over that defendant. As the Supreme Court has declared more than once, "[wlithout...

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