Another Look at the Hague Evidence Convention After Aérospatiale

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1 Another Look at the Hague Evidence Convention After Aérospatiale JAMES A.R. NAFZIGER SUMMARY I. INTRODUCTION II. BACKGROUND A. Case Law B. Hague Evidence Convention: Article C. Aérospatiale III. POST AÉROSPATIALE EXPERIENCE A. Jurisprudence Reinsurance Co. of America Richmark Madanes Valdez B. The Influence of the Hague Evidence Convention and Aérospatiale IV. CONCLUSION I. INTRODUCTION It is a pleasure to join with you this afternoon, as we bring Aérospatiale 1 out of mothballs and relaunch it at this conference. Selection of that case and its progeny is a further example of Russell Weintraub s characteristic insight and good judgment. Let me thank the Texas International Law Journal for giving me this opportunity to rethink and, in fact, revise some of my own thinking about Aérospatiale and the Hague Evidence Convention. 2 The issues that they address are of the first order in international litigation. Indeed, no aspect of international litigation has caused as much friction as the issue of discovery. 3 Aérospatiale allowed a court to attempt to compel discovery of evidence in France against a French defendant. Famously or infamously, the Court simply applied the Federal Rules of Civil Procedure notwithstanding requirements to the contrary in the Evidence Convention that had been sanctioned by a French blocking statute. 4 It was a cause célèbre at the time even though the core issue could be viewed in different ways. On one level, the Thomas B. Stoel Professor of Law, Willamette University College of Law. 1. Société Nationale Industrielle Aérospatiale v. United States Dist. Court, 482 U.S. 522 (1987). 2. Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature Mar. 18, 1970, 23 U.S.T. 2555, 847 U.N.T.S. 231 [hereinafter Evidence Convention]. 3. ANDREAS LOWENFELD, INTERNATIONAL LITIGATION AND THE QUEST FOR REASONABLENESS 137 (1996). 4. Generally, blocking statutes prohibit requests for discovery of evidence for use in foreign proceedings. They are usually subject, however, to modification by international agreement, including the Evidence Convention. 103

2 104 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:103 decision can be seen as simply an exercise in treaty interpretation. On another level, it is a conflict within our dualist constitutional system between a treaty and an act of Congress. On still another level, Aérospatiale is a choice-of-law case in which the Court weighed a rule of private international law that the law of the forum governs issues of procedure and evidence against a rule of private and public international law that the law of the place where evidence is taken governs the process, including such issues as the role of judges and the extent of confidentiality. States must therefore consent to the scope and manner of evidence-taking on their territory. On that level, Aérospatiale can be seen as a victory of lex fori over some sort of lex loci. 5 However the case might be viewed, the decision generated enormous controversy and commentary. 6 Generally, scholars have seen it as a victory of xenophobia over international awareness, in Russell Weintraub s words. 7 I joined in the chorus of disapproval of Aérospatiale primarily because of my concern that the courts had misapplied the Supremacy Clause of the United States Constitution 8 in a classic conflict between an act of Congress and a treaty, between the permissive Federal Rules of Civil Procedure and the Evidence Convention. In my view, the normal means of resolving a conflict of this sort seemed to limit the taking of evidence to the procedures set forth in the Convention, at least as a first resort. The Charming Betsy principle, 9 the laterin-time principle, 10 and the apparent intent of the President and Congress to codify and progressively develop international custom for taking evidence abroad 11 all seemed to support the paramountcy of the Evidence Convention. Moreover, the objects and purposes of the treaty itself to bridge the chasm between civil law and common law methods of taking evidence and to improve judicial cooperation in civil and commercial matters 12 would seem to counsel a reliance in cases like Aérospatiale on the Evidence Convention or at least a first resort to it. The Convention s stated purpose of bridging the chasm between common law and civil law approaches is somewhat of a euphemism for dealing with U.S. practice. This country stands virtually alone, even among common law systems, in its enthusiasm for 5. See LOWENFELD, supra note 3, at See, e.g., George A. Bermann, The Hague Evidence Convention in the Supreme Court: A Critique of the Aérospatiale Decision, 63 TUL. L. REV. 525 (1989); Gary B. Born & Scott Hoing, Comity and the Lower Courts: Post-Aérospatiale Applications of the Hague Evidence Convention, 24 INT L LAW. 393 (1990); David J. Gerber, Obscured Visions: Policy, Power, and Discretion in Transnational Discovery, 23 VAND. J. TRANSNAT L L. 993 (1991); David J. Gerber, International Discovery After Aérospatiale: The Quest for an Analytical Framework, 82 AM. J. INT L L. 521 (1988); Joseph P. Griffin & Mark N. Bravin, Beyond Aérospatiale: A Commentary on Foreign Discovery Provisions of the Restatement (Third) and the Proposed Amendments to the Federal Rules of Civil Procedure, 25 INT L LAW. 331 (1991); LOWENFELD, supra note 3; Harold G. Maier, Extraterritorial Discovery: Cooperation, Coercion and the Hague Evidence Convention, 19 VAND. J. TRANSNAT L L. 239 (1986); Diane Lloyd Muse, Note, Discovery in France and the Hague Convention: The Search for a French Connection, 64 N.Y.U. L. REV (1989). Darrell Prescott & Edwin R. Alley, Effective Evidence-Taking Under the Hague Convention, 22 INT L LAW. 939 (1988); Russell J. Weintraub, The Need for Awareness of International Standards When Construing Multilateral Conventions: The Arbitration, Evidence, and Service Conventions, 28 TEX. INT L L.J. 441 (1993); Patricia J. Youngblood & John J. Welsh, Obtaining Evidence Abroad: A Model for Defining and Resolving the Choice of Law Between the Federal Rules of Civil Procedure and the Hague Evidence Convention, 10 U. PA. J. INT L BUS. L. 1 (1998). 7. See Weintraub, supra note 6, at 461, U.S. CONST. art. VI, cl Chief Justice Marshall s famous opinion in Murray v. Schooner Charming Betsy established that an act of Congress ought never to be construed to violate the law of nations if any other construction remains. 6 U.S. (2 Cranch) 64, (1804). 10. Under the later-in-time principle, an act of Congress will, for domestic purposes, supersede any conflicting provisions of a pre-existing treaty. Conversely, a subsequent treaty trumps a pre-existing statute. Whitney v. Robertson, 124 U.S. 190, 190 (1888). 11. See S. EXEC. REP. NO (1972). On treaties in the United States constitutional system, see generally James A.R. Nafziger, Treaties, in OXFORD COMPANION TO AMERICAN LAW (2002). 12. Evidence Convention, supra note 2, at 2557.

3 2003] ANOTHER LOOK AT THE HAGUE EVIDENCE CONVENTION 105 broad pre-trial discovery. The Convention, therefore, addresses not so much a profound conflict between civil law and common law traditions as it does the U.S. practice of broad discovery rights 13 and direct judicial orders to compel discovery abroad. Historically, other legal systems have been hostile not so much to discovery itself, but rather to an extravagant version of it seeking unspecified information. This practice is what is characterized as fishing expeditions or legal tourism. Opponents of broad discovery point to Rule 26(b) of the Federal Rules of Civil Procedure, which provides broadly that [p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.... Relevant information need not even be admissible at the trial Additional language in Rule 26(b) limits the extent of discovery, but confirms that [f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. 15 In the view of other legal systems, this language is too broad, giving rise to abuse in the taking of evidence abroad. Lord Diplock s observation of a wide-roving search for any information that may be helpful 16 rings in sovereign ears. The Evidence Convention was in large measure designed to discipline the process of transnational discovery by encouraging U.S. litigants, as a practical matter, to use the Convention s prescribed procedures. 17 That point may seem obvious. Unfortunately, however, the Evidence Convention is not artfully worded. In fact, it is rather poorly worded, failing to give much guidance to either bench or bar. The Aérospatiale Court read the Convention to giveth uniform procedures with one hand what it taketh away by permissive language. Accordingly, the Court relied on the Convention s repeated use of the word may instead of must or shall to refute the view that the Convention is mandatory. 18 In view of the objects and purposes of the Convention and the context in which the salient verbs appear, the Court s interpretation is highly questionable. The Court s fussiness about semantics may reflect its difficulty in applying a consistent methodology for interpreting treaties. 19 The Court s constricted view of the Convention may also reflect judicial skepticism about the constitutional role of private international law treaties, indeed of any international law. In my view, however, the apparent parochialism of Aérospatiale was not the product of a pervasive, unilateralist ideology or skepticism about international or foreign law. Instead, the case needs to be seen more as an expression of confidence, or perhaps overconfidence, in the efficacy of domestic procedures to help achieve material justice in first-order cases. What is often at stake in these cases is the potential blocking of access to evidence that may defeat recovery for victims of aviation accidents, antitrust abuse, securities violations, and the like. 13. Under the Federal Rules of Civil Procedure, methods for discovery include the following: deposition upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. FED. R. CIV. P FED. R. CIV. P. 26(b)(1). 15. Id. 16. British Airways Bd. v. Laker Airways Ltd., [1984] 3 W.L.R. 413, As a practice tip, a leading manual counsels that [w]hen discovery is permitted, the prudent practice is to obtain letters of request or a commission in connection with the deposition. JAY E. GRENIG & JEFFREY S. KINSLER, HANDBOOK OF FEDERAL DISCOVERY AND DISCLOSURE 612 (1998). 18. Aérospatiale, 482 U.S. at Consider, for instance, several recent opinions interpreting the Convention for the Unification of Certain Rules Relating to Transportation by Air, opened for signature Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11 (1934) [hereinafter Warsaw Convention]. Compare Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996), with Sale v. Haitian Center Council, Inc., 509 U.S. 155 (1993); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991); Chan v. Korean Air Lines Co., 490 U.S. 122 (1989); and United States v. Alvarez-Machain, 504 U.S. 655 (1992).

4 106 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:103 Justice Stevens, who wrote for the majority in Aérospatiale, does not seem to harbor a persistent skepticism about international or foreign law. For example, six years later in the notorious case of United States v. Alvarez-Machain, 20 he wrote a vigorous dissent. Alvarez-Machain tested the scope of an extradition treaty between the United States and Mexico. The question was whether the treaty barred federal prosecution of a Mexican national who had been kidnapped in Mexico by U.S. law enforcement personnel. The Court s answer was no. In his dissenting opinion, Justice Stevens argued that the treaty provided the exclusive means for rendering over individuals from one country to the other. He branded as monstrous the Court s decision to discount the circumstances by which the defendant was abducted from his own country despite the extradition treaty. 21 What, then, has been the effect of Aérospatiale during its first fifteen years and how goes the Evidence Convention? Unquestionably, as a continuing flow of recent case law suggests, Aérospatiale has encouraged parties to seek extensive discovery abroad, in the American way, and thereby challenge the objects and purposes of the Evidence Convention. 22 But there is more to the story. The skies of Aérospatiale may not have been so unfriendly after all, and the Evidence Convention may be more effective than many of us predicted immediately after Aérospatiale. It is time for another new look at the treaty regime in practice. 23 II. BACKGROUND A. Case Law Aérospatiale was decided against the background of the Rogers decision thirty years before. Société Internationale pour Participations Industrielles et Commerciales S.A. v. Rogers 24 concerned a suit under the Trading with the Enemy Act 25 by a Swiss holding company for the return of property seized during the Second World War by the Alien Property Custodian. The District Court ordered the petitioner to produce certain records from its Swiss bank even though the Swiss Federal Attorney had prohibited their production, thereby constructively seizing them. A threshold issue in the case was whether the interdictions of Swiss law barred the conclusion that the petitioner had control of the documents within the meaning of Rule 34 of the Federal Rules of Civil Procedure. 26 The Court held that the petitioner did have the requisite control, that the production order was therefore justified, and that the petitioner had not complied with it. The Supreme Court nevertheless held that dismissal of the complaint with prejudice was not justified because the Swiss holding company had demonstrated its good faith and specific efforts to comply with the production order. On the other hand, Rogers also teaches that a non-complying defendant may damage its case by failing to disclose useful information U.S. 655 (1992). 21. Id. at See LOUISE TEITZ, TRANSNATIONAL LITIGATION (1996). See also American Bar Association, Section on International Law, International Litigation Committee, Reported Post-Aérospatiale United States [sic] Hague Evidence Convention Cases (unpublished) [hereinafter ABA Reported Cases]. 23. For a new look at the Evidence Convention that offers several compelling recommendations for amendment of the Evidence Convention and other reforms, see LOWENFELD, supra note 3, at U.S. 197 (1957) U.S.C. app. 1 6, 7 39, (1994). 26. FED. R. CIV. P. 34(b). It should be noted, incidentally, that under Rule 34, requests for documents must be described with reasonable particularity. Id. R. 34(a) U.S. at 212.

5 2003] ANOTHER LOOK AT THE HAGUE EVIDENCE CONVENTION 107 In explaining subsequent case law, including Aérospatiale, we should recall certain findings and dicta in Rogers. The Court cast the Swiss petitioner in the same position as a U.S. plaintiff, noting that the petitioner had not claimed a recognition of Swiss laws that protect bank records; that it had explicitly recognized that it was subject to the procedural rules of U.S. courts; that the petitioner would not profit through its inability to tender the requested records; and that the District Court had wide discretion to proceed in whatever manner it deems most effective... [including an exploration of] plans looking towards fuller compliance. 28 Aérospatiale, therefore, was not flying out of control; rather, Rogers steered it toward the view that trial courts could properly exercise discretion in reviewing issues related to the taking of evidence abroad. Rogers itself provided little additional guidance, however, on the extent to which a conflict of laws should temper the consequences of compelled discovery. Instead, it served to accelerate a trend in important legal systems toward enactment of blocking statutes that prohibit their citizens or residents from complying with broad discovery orders. 29 But the decision did offer some solace to parties who could show that they had tried to work out an accommodation with foreign authorities who stood in the way of compliance with an order. 30 To this extent, at least, Rogers reinforced the bridge-building purpose later articulated in the Evidence Convention. After Rogers, it was left to two Restatement provisions to supply more detailed means for responding to a clash of procedures. Section 40 of the Restatement (Second) of Foreign Relations Law established a balancing test to resolve a broad range of transnational conflicts requiring inconsistent conduct by a natural or legal person. 31 More recently and more precisely, Section 442 of the Restatement (Third) of Foreign Relations Law sets forth five criteria for issuing and framing an order that mandates production of information located abroad. These criteria are: the importance to the investigation or litigation of documents or other requested information; the specificity of the request; the origin of the requested information, specifically whether it originated in the United States; the availability of alternative means of securing the information; and the extent to which noncompliance with the request would undermine important interests of the United States or compliance with the request would undermine important interests of the state where the information is located. 32 Aérospatiale considered the Rogers precedent in the face of the Evidence Convention, to which the United States became a party in It is generally agreed that the Convention s prescribed procedures for taking evidence abroad letters of request (otherwise known as letters rogatory) and proceedings before diplomatic officers, consular agents, and commissioners are comprehensive but not exclusive. Article 27(c) of the 28. Id. at See LOWENFELD, supra note 3, at The court stated: The Report of the Master bears importantly on our disposition of this case.... Noting that the burden was on petitioner to show good faith in its efforts to comply with the production order, and taking as the test of good faith whether petitioner had attempted all which a reasonable man would have undertaken in the circumstances to comply with the order, the Master found that [T]he plaintiff has sustained the burden of proof placed upon it and has shown good faith in its efforts [to comply with the production order] in accordance with the foregoing test. Rogers, 357 U.S. at RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 40 (1965). 32. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 442 (1987). 33. Evidence Convention, supra note 2.

6 108 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:103 Convention, for example, allows parties to agree to methods of taking evidence other than those that are specifically provided. 34 Article 9 requires parties to follow any special method or procedure that a letter of request specifies unless to do so would be incompatible with local law, impossible, or impractical. 35 B. Hague Evidence Convention: Article 23 First and perhaps foremost among the Convention s General Clauses, Article 23 allows a Contracting State to declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries. 36 This restriction applies only to documents and not, for example, to oral depositions. It is unclear, however, why the British delegation to the Hague Conference, which proposed Article 23, limited the Article s scope to documentary discovery. 37 Surprisingly, the United States voted in favor of the Article while Germany, France, and Switzerland voted against it. Ironically, of course, it is the civil law systems, in which the term discovery is generally unknown, that have made declarations under Article 23, whereas the United States has always complained that its interests are unfairly handicapped by such declarations. Some of these declarations bar all common law discovery, as in France and Germany, while others limit its scope, as in the United Kingdom. 38 Article 23 s peculiar confinement to documents and the complexity of declarations under it demonstrate that the Article is not only Delphic in its text, it is unsound in concept. 39 C. Aérospatiale Aérospatiale concluded that the Evidence Convention s procedures for pre-trial discovery are not exclusive and mandatory; 40 that the Convention applies to persons and litigation over which the court has jurisdiction; 41 and that comity does not mandate the prescribed procedures as a first resort. 42 Instead, trial courts are instructed to undertake what the Court deemed a particularized analysis of a specific request for discovery and the respective interests of the United States and the foreign states where the requested 34. Id. art. 27(c). 35. Id. art Id. art LOWENFELD, supra note 3, at The qualified United Kingdom declaration, which is directed primarily against fishing expeditions, directs a party requesting discovery: a. to state what documents relevant to the proceedings to which the Letter of Request relates are, or have been, in his possession, custody, or power; or b. to produce any documents other than particular documents specified in the Letter of Request as being documents appearing to the requesting court to be, or to be likely to be, in his possession, custody or power. Id. at Because Article 23 addresses only documentation and not oral testimony, a person being interrogated might be asked Did you attend a meeting with X on October 9? Yes. Were minutes kept at that meeting? Yes. Please produce those minutes. Objection under the declaration pursuant to Article 23. That did not make a great deal of sense, and might well diminish the usefulness of the Convention in obtaining information from non-parties. Id. at (citation omitted). For an alphabetical listing of Article 23 declarations, see TEITZ, supra note 22, at LOWENFELD, supra note 3, at Aérospatiale, 482 U.S. at Id. at Id. at 544.

7 2003] ANOTHER LOOK AT THE HAGUE EVIDENCE CONVENTION 109 information is located. 43 In formulating this approach, the Court evidently built upon discovery limitations in the Federal Rules, such as the requirement of reasonable particularity in Rule 34. Specifically, the Court determined that a proposed set of factors that later became Section 442 of the Third Restatement are relevant to any comity analysis The requisite comity, then, became a matter of applying a multifactor test to guide the trial courts discretion in balancing competing claims and interests. The Court s opinion was actually more sympathetic to the first-resort requirement than the dissent seems to have recognized. The Court simply declined to hold as a blanket matter that comity requires resort to Hague Evidence Convention procedures without prior scrutiny in each case of the particular facts, sovereign interests, and likelihood that resort to those procedures will prove effective. 45 The test was to be one of reasonableness, given that the Convention s specification of duties in executing states creates corresponding rights in requesting states The skies of Aérospatiale would be even friendlier for foreign legal systems if more courts took seriously the opinion s dicta about special vigilance and judicial supervision of discovery. Specifically, the Court insisted on special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position.... When it is necessary to seek evidence abroad... the district court must supervise pretrial proceedings particularly closely to prevent discovery abuses.... Objections to abusive discovery that foreign litigants advance should therefore receive the most careful consideration. 47 Do these prescriptions not meet the civil law at least half way? Do they not provide some accommodation of the civil law requirement of judicial control over the taking of evidence? These are key questions, inasmuch as the Evidence Convention seeks to accommodate the U.S. practice of broad discovery, generally unsupervised by the courts, with judicial supervision of evidence-taking in most other legal systems. 43. Id. at Id. at 544 n Id. at Aérospatiale, 482 U.S. at The full language from the Court s dicta is as follows: Id. at 546. American courts, in supervising pretrial proceedings, should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position. Judicial supervision of discovery should always seek to minimize its costs and inconvenience and to prevent improper uses of discovery requests. When it is necessary to seek evidence abroad, however, the district court must supervise pretrial proceedings particularly closely to prevent discovery abuses. For example, the additional cost of transportation or documents or witnesses to or from foreign locations may increase the danger that discovery may be sought for the improper purpose of motivating settlement, rather than finding relevant and probative evidence. Objections to abusive discovery that foreign litigants advance should therefore receive the most careful consideration. In addition, we have long recognized the demands of comity in suits involving foreign states, either as parties or as sovereigns with a coordinate interest in the litigation. See Hilton v. Guyot, 159 U.S. 113 (1895). American courts should therefore take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state. We do not articulate specific rules to guide this delicate task of adjudication.

8 110 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:103 III. POST-AÉROSPATIALE EXPERIENCE After Aérospatiale, attempts to reverse the decision by codifying the first-resort rule in Rule 26 of the Federal Rules of Civil Procedure failed. 48 In 1993, however, Congress amended Rule 28(b) of the Federal Rules of Civil Procedure, the rule concerning depositions in foreign countries, so as to acknowledge treaties such as the Evidence Convention, the Inter-American Convention on the Taking of Evidence Abroad, 49 and bilateral agreements of judicial cooperation. A. Jurisprudence The case law since Aérospatiale has not been quick to apply its dicta supporting first resort to the Evidence Convention in some circumstances. 50 What has happened, nevertheless, is a substantial judicial commitment to a form of particularized analysis that balances competing claims and interests, as set forth in the Third Restatement and more or less prescribed by Aérospatiale, in the interest of comity. Moreover, discovery against non-parties generally requires strict compliance with the prescribed procedures of the Evidence Convention. 51 Also, the courts of two states New Jersey 52 and Oregon 53 have applied the first-resort rule advocated by Justice Blackmun s dissent in Aérospatiale. As a 48. See Weintraub, supra note 6, at Inter-American Convention on the Taking of Evidence Abroad, Jan. 30, 1975, O.A.S.T.S. No. 44, Doc. No. OEA/Ser.A/22, reprinted in 14 I.L.M. 328 (1975). For an acknowledgment of its significance in protecting sovereign interests, see Madanes v. Madanes, 186 F.R.D. 279 (S.D.N.Y. 1999) (Madanes I); Madanes v. Madanes, 199 F.R.D. 135 (S.D.N.Y. 2001) (Madanes II). On the 1993 amendments, see FED. R. CIV. P. 28, advisory committee s note. Rule 28(b) is a significant example of a multijurisdictional solution to conflict between the United States and civil-law procedures for taking of depositions. A leading scholar of private international law has observed as follows: Rule 28(b) thus contemplates, in view of the need for coordinating the rules and policies of the forum and of the place where evidence is to be taken, a quite substantial reshaping of the procedures utilized in fully domestic litigation. A foreign deposition taken on a letter rogatory will ordinarily resemble in process and product the foreign court s approach for its own municipal litigation. The purpose of rule 28(b) is accordingly to permit an American trial court to accept evidence which fails to satisfy domestic standards in cases where an insistence on such standards would [shut] out all light on the subject of inquiry. Arthur T. von Mehren, Special Substantive Rules for Multistate Problems: Their Role and Significance in Contemporary Choice of Law Methodology, 88 HARV. L. REV. 347, 360 (1976). 50. In post-aérospatiale cases in the United States, most courts permitted defendants to attempt to demonstrate that discovery should be via the Convention but then held that defendants had not met the burden of showing: (i) that the particular facts and the interests of the foreign state justified resort to the Convention and (ii) that such resort would not be futile. LOWENFELD, supra note 3, at 193 n.48; see also Weintraub, supra note 6, at See, e.g., PKFinans Int l Corp. v. IBJ Schroder Leasing Corp., No , 1996 WL (S.D.N.Y. Oct. 15, 1996); Intercontinental Credit Corp. v. Roth, 595 N.Y.S.2d 602 (N.Y. Sup. Ct. 1991); Orlich v. Helm Bros., 560 N.Y.S.2d 10 (N.Y. App. Div. 1990). 52. See, e.g., Husa v. Laboratoires Servier SA, 740 A.2d 1092 (N.J. Super. App. Div. 1999); Knight v. Ford Motor Co., 615 A.2d 297 (N.J. Super. Ct. Law Div. 1992). But see, e.g., Moake v. Source Int l Corp., 623 A.2d 263 (N.J. Super. Ct. App. Div. 1993); Benton Graphics v. Uddeholm Corp., 118 F.R.D. 386 (D.N.J. 1987) (holding that the Hague Convention is an optional procedure). 53. Geo-Culture, Inc. v. Siam Inv. Mgmt., 936 P.2d 1063 (Or. App. 1997) (limiting discovery to the prescribed procedures of the Evidence Convention in the absence of an allegation of a prima facie basis for asserting jurisdiction over the defendant).

9 2003] ANOTHER LOOK AT THE HAGUE EVIDENCE CONVENTION 111 result, the case law since Aérospatiale allays the anxiety expressed fifteen years ago that the Court s decision had virtually nullified the Convention. 54 Although critics have properly noted the courts tendency to apply the trump card of the Federal Rules to the more restrictive Evidence Convention, Aérospatiale has generated greater methodological consistency in the case law. Nearly one hundred reported cases after Aérospatiale have considered the applicability of the Evidence Convention. 55 However indeterminate and unilateralist the case law may continue to be, it has become more stable. Trial courts do have substantial discretion, but they seem to have exercised their discretion reasonably, if not predictably. No longer can we confidently conclude, in the words of the government s amicus brief in Aérospatiale, that the precise nature of the foreign interests at stake in discovery controversies has not been well articulated by the courts or by foreign litigants in the past. 56 The case law may be less determinate and more unilateralist than many of us would like, but reports of the death of guidance about discovery appear to be exaggerated. Among the most interesting foreign discovery cases since Aérospatiale are those not involving the Evidence Convention, which typically arise when the proposed discovery is to be taken in the territory of a non-party to the Convention or when no litigant proposes to use it. Such cases might seem to be irrelevant to a discussion of the Convention after Aérospatiale, but I believe that this line of cases sheds light on the question of their viability. Let me briefly summarize four decisions to make my point. 1. Reinsurance Co. of America In Reinsurance Co. of America v. Administratia Asigurarilor de Stat, 57 a U.S. reinsurer having brought suit in federal court against a Romanian reinsurer for breach of contract, requested post-judgment interrogatories in Romania. The Seventh Circuit Court of Appeals held that, although the Romanian reinsurer was not entitled to relief from the trial court s judgment against it, it was nevertheless entitled to protection against compelled discovery of information considered to be service secrets under the then-socialist Romanian law. 58 In reaching this result, the court applied both Section 40 of the Restatement (Second) and Section 442 of the Restatement (Third) of Foreign Relations Law, putting a premium on good-faith efforts to secure permission from foreign authorities to allow disclosure of requested information. 59 Under this analysis, the court held that the interests of the Romanian government outweighed those of the United States. The majority s persuasive approach responds well to Judge Easterbrook s biting criticism in a concurring opinion to the effect that the normal balancing calls on the district judge to throw a heap of factors on a table and then slice and dice to taste... [using] a different recipe for each meal. 60 The majority opinion s careful analysis also refutes Easterbrook s conclusion that Section 442(2)(c) breaks down when the 54. See, e.g., Catherine E. Woodward, Note, Discovery: Application of the Hague Convention in United States Courts, 29 HARV. INT L L.J. 160, 168 (1988). 55. ABA Reported Cases, supra note Brief for the United States and the Securities and Exchange Commission as Amici Curiae at 22, Aérospatiale (No ), reprinted in 25 I.L.M. 1504, 1515 (1986) F.2d 1275 (7th Cir. 1990). 58. Id. at Id. at Id. at 1283.

10 112 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:103 prevailing party is seeking to discover assets in a non-capitalist economy. 61 demonstrates the same proposition. The next case 2. Richmark Richmark Corp. v. Timber Falling Consultants 62 has been cited some twenty times in the decade since it was decided. In Richmark, Beijing Ever Bright Industrial Co. (Beijing), a Chinese corporation, described as an arm of the government, contracted to purchase timber from Richmark, which in turn retained Timber Falling Consultant (TFC) to procure the timber. When the contract collapsed, Richmark brought an action against TFC. After a spate of cross-claims and counterclaims, TFC was awarded a $2.2 million judgment against Beijing, following which TFC served Beijing with several post-judgment discovery requests and interrogatories. Beijing failed to respond while court proceedings continued on its motion for relief from judgment. Eventually, Beijing sought a protective order against discovery, claiming an inability to comply without violating the State Secrecy Laws of the People s Republic Rogers and Aérospatiale all over again. Beijing produced an official letter to attest that its submission to discovery would indeed get it into trouble in its own territory. In response to Beijing s motion for a protective order, the court undertook a meticulous analysis, citing Rogers and Aérospatiale and applying the criteria of the Restatement (Third) of Foreign Relations Law. It concluded, first, that the importance of the requested documents weighed in favor of compelling disclosure; second, that the request was sufficiently specific and unburdensome to Beijing; third, that the gravity of documentation was in China; and fourth, that TFC had fully exercised its power to collect information and had no alternative means to obtain it. 63 After noting that balancing national interests was the most important factor, 64 the court concluded that neither Beijing nor the P.R.C. economy would be adversely affected by disclosure of the information. 65 The court then observed that any hardship to Beijing had been self-imposed. Beijing could avoid having to violate either the district court s orders or the P.R.C. s laws by posting a supersedeas bond pending the outcome of its petition for certiorari in the case or by simply paying the judgment. 66 Finally, the court acknowledged that although Beijing s compliance with an order compelling discovery would be unlikely, it could be fashioned to produce partial compliance and might well be effective more broadly by sending a message to other foreign companies contemplating business in the United States. 67 In sum, the court concluded that [a]ll Beijing has demonstrated is that disclosing the information will result in negative consequences for it The court expressed the hope that its decision against Beijing would not affect cordial business relations between the United States and the P.R.C., given that international business requires the accommodation of different legal climates Id. at F.2d 1468 (9th Cir. 1992). 63. Richmark Corp., 959 F.2d at Id. at Id. at Id. 67. Id. at Id. at Richmark Corp., 959 F.2d at 1479.

11 2003] ANOTHER LOOK AT THE HAGUE EVIDENCE CONVENTION Madanes Madanes v. Madanes 70 features what may be the most dysfunctional family of An Argentinian sister brought a civil RICO action against her brothers and entities controlled by them, alleging that they had engaged in mail and wire fraud and money laundering to deprive her of family assets to which she was entitled. The sister moved for issuance of a letter of request to obtain certain banking records located in Argentina as well as to obtain answers to interrogatories. The brothers applied for a protective order to place tight restrictions on the dissemination of potentially incriminating information, in view of an Argentinian privilege against self-incrimination Rogers all over again. The court, citing Aérospatiale in both of its opinions on the discovery issue, applied the particularized analysis of the Third Restatement. 71 Although the five criteria pointed in both directions, what again proved decisive was the balancing of national interests. Noting that U.S. interests were attenuated, despite the infusion of public interest in RICO claims, the court determined that the strength of Argentinian interests tipped the balance against compelled discovery, given that the Argentinian privilege against self-incrimination paralleled the same right under the U.S. Constitution. 72 The court therefore crafted an order designed to protect the defendants from dissemination of incriminatory information Valdez The fourth and last case, Volkswagen, A.G. v. Valdez, 74 which was decided by the Supreme Court of Texas, will help bring home, in more ways than one, certain points that I want to make. It is one of the few cases in which either of the parties could have invoked the Evidence Convention, but neither did. Perhaps the trial judge should have taken judicial notice of the Convention and examined it sua sponte. The issue involved a request for discovery of Volkswagen s corporate telephone book in a products liability action. The court first determined, in good choice-of-law fashion, that a German privacy law protecting private data actually conflicted with Texas discovery rules. 75 After applying the five criteria of the Third Restatement, the court ruled four to one against compulsion of discovery, holding, further, that the trial court had abused its discretion by rejecting any consideration of German law. 76 The court s issuance of a conditional writ of mandamus against discovery overturned decisions of both the trial court and the Texas Court of Appeals. One might also note Ex parte Toyokuni & Co., in which the administrator of an estate brought a wrongful death action against a Japanese manufacturer of a kerosene heater. 77 The court refused to issue a writ of mandamus against an order compelling the defendant F.R.D. 279 (S.D.N.Y. 1999) (Madanes I). In Madanes v. Madanes, 199 F.R.D. 135 (S.D.N.Y. 2001) (Madanes II) the same court later held that the Evidence Convention was not compulsory and that the defendants interest in proceeding under the Convention was minimal. Id. at 142. The court held that in the absence of a blocking statute, a threat to normal judicial control, or other sovereign interest, the defendants need for the protective order provided in Madanes II and the advantages of a deposition format favored compelled discovery rather than a letter of request for the examination of witnesses in Argentina. Id. 71. Id. at Id. at Id. at S.W.2d 900 (Tex. 1995). 75. Id. at Id. at Ex Parte Toyokuni & Co., 715 So. 2d 786, 787 (Ala. 1998).

12 114 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:103 corporation to appear for a deposition in Alabama. 78 An important part of the court s rationale was that [a]n attempt to compel discovery pursuant to our rules on Japanese soil could infringe foreign judicial sovereignty. 79 B. The Influence of the Hague Evidence Convention and Aérospatiale What does this all add up to? At first it might seem paradoxical that discovery-related case law involving the Evidence Convention after Aérospatiale is somewhat less consistent and more unilateralist or parochial than we might like, whereas discovery-related case law not involving the Evidence Convention is generally consistent and frequently deferential to foreign law. This paradox may be only superficial, however. The extent to which the case law involving the Convention is inconsistent or unilateralist may be questioned. Also, the viability of the Evidence Convention may help explain the apparent anomaly. Contrary to some predictions, the Evidence Convention is alive and well fifteen years after Aérospatiale. The number of parties to it has grown by approximately forty percent in just four years, 80 and several of the new parties are major actors in transnational litigation. 81 The Convention has been effective in encouraging at least some litigants to use its procedures when they otherwise might have routinely sought to take evidence abroad in the good old American way. Faced with the burden of challenging a particularized analysis of factors supporting resort to the Evidence Convention, a litigant may conclude that the Convention procedures are not so bad after all. Litigants can see that, although the foreign procedures are sometimes slow and frustrating, they do provide assurances of foreign judicial cooperation and avoidance of procedural hassles abroad, particularly under foreign blocking statutes and other legal obstacles to discovery. In other cases, parties are able to negotiate advantageous terms for discovery by agreeing to waive claims based on the prescriptions of the Evidence Convention. 82 What remains in the West Reporters, then, are typically the tough cases involving diehard, though presumably good faith, efforts to avoid what are seen to be the restrictions, delays, and other complications of the procedures prescribed by the Evidence Convention. Unfortunately, however, a few of these cases did not give adequate attention to the Aérospatiale dicta designed to discourage legal tourism by lending content to the principles of reasonableness and comity. It is certainly disappointing to find conclusory opinions that a defendant has failed to carry the burden of proving the applicability of the Convention even though the plaintiff s request for discovery abroad is vague or unparticularized. 83 These opinions are particularly discouraging when one considers that the Federal Rules themselves require reasonable particularity in the formulation of requests for some types of discovery. 84 Other opinions are disappointing in rejecting the Convention merely because 78. Id. at Id. at Thirty-eight countries have ratified the Convention. Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, Full Status Report, at stat20e.html (last visited Oct. 28, 2002). The latest parties are Belarus, Bulgaria, Lithuania, Russia, Slovenia, and Sri Lanka. 81. Of the new parties, South Africa, Switzerland, China, and Russia are major actors in transnational litigation. 82. See, e.g., Boss Mfg. Co. v. Hugo Boss A.G., No , 1999 WL (S.D.N.Y. 1999); Greene v. Le Dorze, No , 1998 WL (N.D. Tex. 1998). 83. See, e.g., In re Asbestos Litigation, 623 A.2d 546 (Del. Super. Ct. 1992). 84. See, e.g., FED. R. CIV. P. 34.

13 2003] ANOTHER LOOK AT THE HAGUE EVIDENCE CONVENTION 115 it would impose expense and time. 85 Generally, however, the cases reveal careful analysis; a few even apply the first-resort rule. 86 Generally, Aérospatiale has encouraged litigants to justify and seek to minimize, on one hand, the scope of discovery, and on the other, sovereign rights to block it. The end result has ensured greater access to information, without unnecessarily ruffling foreign feathers. In the case itself, on remand, the French manufacturer agreed to provide the requested information without judicial compulsion, thereby avoiding a conflict of sovereign authority. 87 Cases not involving the Evidence Convention are, of course, free of both its prescribed procedures as well as Aérospatiale s explicit deference to the Federal Rules. Nevertheless, these cases have looked to Aérospatiale and the Court s dicta for guidance. The result has been a strong reliance on the particularized methodology set forth in the Third Restatement that promotes a sensitivity to foreign interests and methodological consistency. Viewing Aérospatiale and its progeny more broadly, we should keep in mind what is often at stake. Normally, the Evidence Convention works well in bridging the procedural chasm between U.S. and foreign procedures. On the other hand, the pressures for broad discovery increase when the stakes are high, when the cases are of the first order, and when the issues are no longer routine ones involving probate and family law, for example. Fishing lines go out. Barriers go up. Legal snags develop. Big league cases involving aviation disasters, products liability, RICO claims, and the like pit non-disclosure rules and sometimes blocking statutes against access to information. This information is of the sort that one ordinarily expects in a democracy and that is requisite to the operation of a free economy. Sometimes it may not be possible to particularize a request. 88 In such cases, it is certainly appropriate to ask, without being excessively plaintifforiented, whether the conflicts justice of bridge-building under the Evidence Convention ought to prevail over material justice. Instead, it may be preferable to work toward a consensus on standards of discovery, which were inspired by the dicta in Aérospatiale, while at the same time taking account of the procedural framework of the Evidence Convention. A final point concerns the 1999 Rules on the Taking of Evidence in International Commercial Arbitration of the International Bar Association (IBA). 89 This reform of earlier rules is complex. The amended rules facilitate discovery of documents possessed by another party, regardless of the intended use of those documents. But an arbitrator may compel production of a document only after determining that none of some seven grounds of objection apply, including special political or institutional sensitivity. 90 Also, an arbitrator or presiding arbitrator on a panel, rather than the requested party, judges requests for discovery on the basis of the relevance and materiality of specified information to the outcome of a case. 91 Generally, the IBA Rules seem to strike a good balance between common law and civil law procedures and requirements. Perhaps experience under the IBA Rules will further encourage the bar and, by extension, the bench to strike an 85. See, e.g., In re Aircrash Disaster Near Roselawn, Indiana, 172 F.R.D. 295 (N.D. Ill. 1997). 86. See cases cited supra notes LOWENFELD, supra note 3, at See, e.g., First American Corp. v. Price Waterhouse LLP, 154 F.3d 16, 23 (2d Cir. 1998). 89. INTERNATIONAL BAR ASSOCIATION, RULES ON THE TAKING OF EVIDENCE IN INTERNATIONAL COMMERCIAL ARBITRATION (1999), (last visited Aug. 21, 2002). 90. Id. art. 9, Id. art. 9, 1.

14 116 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:103 acceptable balance between the quest for information and sovereign constraint of legal tourism or fishing expeditions. IV. CONCLUSION Expansive methods of taking evidence abroad may intrude into foreign authority and territory. Issues about discovery can be especially acute in first-order cases when they serve as a substitute for conflict concerning more substantial issues of nationalism, concurring jurisdiction, economic regulatory authority, and consumer protection. Globalization and the Internet heighten the issues by encouraging a free flow of information, facilitating the search for it, and softening sovereign territorial constraints. It is a small wonder then, that in this era of adjustment to both globalization and electronic data transfer, disputes involving discovery are among the most common aspects of transnational litigation in federal courts. 92 There is broad agreement on the need for uniform procedures or at least procedural standards. Neither the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters nor interpretations of it, however, have fully bridged the chasm between the U.S. and other legal systems concerning transnational discovery. Generally, the Convention s goal of fully informing the legal process cannot be faulted. The problems, however, are not simply of a general nature concerning judicial Weltanschauung, a broad conflict between common law and civil law traditions, or a clash of sovereign wills. Instead, they are also problems of specific implementation and identity. Aérospatiale s restrictive interpretation of the scope of the Convention has been roundly criticized as a threat to procedural uniformity and a complication in the process of globalization. But Aérospatiale s dicta belie its unilateralist or parochial reputation. Its requirement of particularized analysis should encourage a more eclectic view. As the case law demonstrates, the post-aérospatiale approach does offer some assurance of uniformity and predictability of decisions about discovery abroad. The skies of Aérospatiale are reasonably friendly to foreign legal systems. The post-aérospatiale case law suggests, indeed, that the Evidence Convention is influential. It clearly governs the taking of evidence against non-parties to litigation and shapes requirements for doing so against parties. The courts of two states New Jersey and Oregon require a first resort to the Convention. A line of cases where the Convention is not directly controlling helps reveal its influence by disclosing a fairly consistent methodology inspired by the dicta in Aérospatiale, particularly its reference to criteria in the Restatement (Third) of Foreign Relations Law. Similarly, case law involving the Evidence Convention is more consistent and less parochial than sometimes acknowledged. In all, the post-aérospatiale experience suggests a measure of stability of methodology, multilateralism in outlook, and sensitivity toward foreign claims and interests. But more needs to be done to accommodate foreign law and to achieve consistency in the approach taken by U.S. courts toward the taking of evidence abroad. For starters, courts should pay closer attention to the dicta in Aérospatiale that establish judicial supervision over discovery; encourage sensitivity to foreign claims and interests; and consider the first-resort rule for the taking of evidence abroad. As Russell Weintraub advised the judiciary, [t]o develop more consistency in approach, all participants in the process of transnational 92. Christopher J. Borgen, Judicial Views of International Law, PROC. 95TH ANN. MTG. AM. SOC Y INT L L. 28 (2002) (summarizing remarks of Chief Judge John Walker of the United States Court of Appeals for the Second Circuit).