The thing about non-U.S. discovery for U.S. litigation: it's expensive and complex.

• Author: Dunn, Richard M.

While the Hague Convention has made it somewhat easier, there still are complicated procedures, foreign policy considerations and "blocking" statutes

AMERICAN lawyers are accustomed to the broad, sometimes intrusive, discovery available to litigants in the United States under federal and state rules of procedure. In other nations, especially civil law countries, discovery is much more restricted in scope, if not totally unknown, and often controlled by a judicial official rather than the requesting party. As evidenced by some of the discovery blocking statutes in those nations, there is widespread distaste for American-style pretrial discovery. The fundamental differences in the nature of discovery outside and within the United States often lead to frustration-as well as much wasted time, energy and expense--on the part of American lawyers attempting to obtain evidence located abroad.

PARTY DISCOVERY

1. Aerospatiale

   In 1987, the U.S. Supreme Court issued its landmark decision in Societe Nationale Industrielle Aerospatiale v. United States District Court,(1) holding that the Hague Evidence Convention(2) is neither the exclusive means for gathering evidence in the hands of a foreign party to U.S. litigation, nor is first resort to that convention required before a party to U.S. litigation may seek discovery from the foreign party pursuant to the Federal Rules of Civil Procedure.

   Although the Court left open the possibility that a trial court, in its discretion, and as a matter of international comity, might elect to require first resort to the Hague Evidence Convention, as a general rule U.S. courts have not required first resort to the convention. Some of these cases are:

   * In re Aircrash Disaster Near Roselawn, Indiana,(3) holding that the Federal Rules of Civil Procedure, rather than the convention, applied to discovery against a French corporations because the discovery requests were not intrusive, the discovery would not jeopardize French sovereign interests, and the convention's procedures would be complicated, time consuming and expensive.

   * Doster v. Schenk,(4) denying a German defendant's motion for a protective order and holding that the Federal Rules of Civil Procedure applied to the plaintiff's discovery requests because the requests were not intrusive, they did not compromise Germany's sovereign interests, and the convention's procedures would not be effective.

   * Great Lakes Dredge & Dock Co. v. Harnischfeger Corp.,(5) ermitting discovery under the Federal Rules of Civil Procedure.(6)

   * Moake v. Source International Corp.,(7) a New Jersey state court case holding that New Jersey discovery rules applied to interrogatories served on a German corporation because discovery did not violate Germany's interests and there was no suggestion that the procedures of the convention would be more effective.

   * In re Asbestos Litigation,(8) Delaware state court case holding that a plaintiff did not have to conduct discovery against a Finnish defendant under the Hague Evidence Convention procedures.

   * Scarminach v. Goldwell GmbH,(9) a New York state court case applying New York's discovery rules, rather than the convention, to interrogatories and documents requests served on a West German corporation.

   * Sandsend Financial Consultants Ltd. v. Wood,(10) holding that Texas rules applied to discovery involving a foreign corporation.

   But not all cases have gone that way. For instance:

   * In re Perrier Bottled Water Litigation,(11) applying the Aerospatiale comity analysis and holding that the Hague Evidence Convention should be applied to discovery requests served on a French corporation because the discovery requests were intrusive, the Federal Rules of Civil Procedure would infringe on French judicial sovereignty, and no evidence suggested that the convention's procedures would prove ineffective.

   * Hudson v. Hermann Pfauter GmbH & Co.,(12) relying on the Aerospatiale concurrence and dissenting opinions and concluding that the convention should govern the service of 92 interrogatories on a West German manufacturer because the Federal Rules of Civil Procedure would offend the sovereign interests of civil law countries, such as Germany.

   * Husa v. Laboratories Servier S.A.,(13) a New Jersey state court case required first resort to the convention, the court refusing to assume that "American" rules were superior to those of the convention without first seeing the effectiveness of the convention' s procedures.

   While American counsel have reason to feel fairly confident of being able to conduct party discovery abroad using the federal or state civil procedure rules or statutes, it still is a good idea to draft discovery requests as specifically as possible, as the few cases that have required first resort to the Hague Evidence Convention appear to have been concerned with intrusive discovery requests offending the sovereign interests of other countries.

2. Discovery under Federal Rules

   1. General

      The specific discovery at issue in Aerospatiale was paper discovery: requests to produce, interrogatories, and requests for admissions. With respect to these forms of discovery, a foreign party is subject to Rules 33, 34 and 36 of the Federal Rules of Civil Procedure, except in the unlikely event, as happened in some of the above cases, that the court requires first resort to the Hague Evidence Convention. Although there also may be blocking statutes or other foreign privilege issues to be taken into consideration by an American court, for the most part, obtaining paper discovery from a foreign party likely will not be much different from the procedure for a domestic party.

      Likewise, with respect to depositions of foreign parties and their agents, American courts often have been willing to compel that these depositions take place in the United States, sometimes conditioned on the payment of costs by the other party, even where the party being deposed is a defendant or the agent of a defendant. (14)

      With respect to depositions of foreign parties that for some reason must be taken abroad, Rule 28(b) of the Federal Rules of Civil Procedure provides:

      Depositions may be taken in a foreign country (1) pursuant to any applicable treaty or convention; or (2) pursuant to a letter of request (whether or not captioned a letter rogatory); or (3) on notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by the law of the United States, or (4) before a person commissioned by the court, and a person...