Archive | September, 2011

Notes from the State Department

Some time ago, I put a few questions to the State Department with a request for comment. Here are the answers I received.

LB:  State Department guidance and recent cases indicate that certain foreign central authorities are not carrying out their obligations under multilateral conventions on judicial assistance. For example, the State Department’s guidance on judicial assistance in Russia states that Russia has unilaterally suspended cooperation with the US under the Hague Service Convention, and reports from practitioners indicate problems with Mexico’s implementation of the Convention. In a recent case, China refused, on Article 13 grounds, to execute a request for service of process. On the macro level, what steps is the Department taking to try to encourage foreign central authorities to give judicial assistance when requested, and on the micro level, can the Department provide assistance to litigants in particular cases who run into problems?

State: In coordination with the Justice Department (which is the U.S. Central Authority under the Hague Service Convention, the Inter-American Convention on Letters Rogatory and Additional Protocol, and the Hague Evidence Convention), we consult directly with authorities in other countries when issues arise relating to implementation of those conventions.

In addition, the Hague Conference on Private International Law periodically convenes Special Commissions of all contracting parties to consider the operation of the Hague conventions, including the judicial assistance conventions.

U.S. persons who encounter problems in particular cases are encouraged to refer to http://travel.state.gov, which provides general and country-specific information on judicial assistance. The State Department cannot, however, provide interpretations of law as they apply to a particular case or otherwise provide legal advice to private parties.

LB: Before the Hague Service and Evidence Conventions came into effect, parties had to make use of the letter rogatory procedure more often than they do today. While that had obvious disadvantages, one advantage was that because letters rogatory had to be legalized and then transmitted through the diplomatic channel, the State Department had a way of keeping statistics about the use of letters rogatory, problems encountered in obtaining judicial assistance in response to letters rogatory, etc. How does the Department try to keep its eye on requests for judicial assistance today, when the process of transmitting requests under the  Conventions typically does not pass through the State Department?

State: We note that U.S. law does not require that letters rogatory be sent through diplomatic channels. See 28 U.S.C. 1781(b).  [Ed. Good point! Not all letters rogatory need to be transmitted through the diplomatic channel]. The laws of a foreign country that is not a party to judicial assistance conventions may require, however, that requests for service of process or the obtaining of evidence be sent through diplomatic channels.

Incoming requests under the Hague Service Convention (or the Inter-American Convention on Letters Rogatory and Additional Protocol) for service through the U.S. Central Authority generally must be sent to Process Forwarding International, the Justice Department’s contractor. For countries that are non-parties, such requests may be sent through diplomatic channels. Accordingly, it is possible to track the volume of those two types of requests. However, private parties may avail themselves of other methods of service that do not involve PFI or the State Department, and we have no means of tracking such requests.

Outgoing requests from private parties for service under the Hague Convention do not go through the Justice Department or PFI. PFI does, however, have responsibility for forwarding outgoing service requests under the Inter-American Convention.

The Justice Department receives and handles incoming requests under the Hague Evidence Convention. It does not handle outgoing requests under that Convention. Voluntary production of evidence within the United States, or production compelled by interested parties under 28 U.S.C. 1782, does not involve the Executive Branch.

LB: What is the status of the Hague Judgment Convention, which has been signed but not yet ratified? [Ed. The Department, in its response, made it clear that the title of the Convention is the Convention on Choice of Court Agreements. I use "Hague Judgment Convention" as a shorthand, but maybe that is too imprecise because it could give the impression that the Convention provides a general mechanism for enforcement of foreign judgments.]

State: The Convention is not yet in force; only one country, Mexico, has deposited its instrument. The United States signed the Convention in 2009. The State and Justice Departments have been consulting with domestic stakeholders regarding the best means of implementing the Convention domestically, with a view to submitting the Convention to the Senate for its advice and consent.

LB: What role, if any, does the Department play in the drafting and promulgation of state laws on the recognition and enforcement of foreign judgment, and what are the Department’s views about the desirability of a federal law to unify the American approach to recognition and enforcement?

State: As part of the consultations noted above, the State and Justice Departments are working with the Uniform Law Commission on the development of implementing legislation, at both the federal and state level, for the Hague Convention on Choice of Court Agreements. Under the proposed implementation scheme, states could elect to implement the Convention by enacting a uniform state act that would apply in lieu of the federal implementing law.

I do have some follow-ups, which I’ll put to the Department, and I’ll let you know what I hear. In particular, I’m interested in the consultation with domestic stakeholders. Aside from the Uniform Law Commission, who are the stakeholders, and what has gone on in these consultations? I’m also interested in what assistance the State Department can or cannot provide to private litigants. The Department notes that it does not provide “legal advice to private parties.” Makes sense. But does the Department provide diplomatic or consular assistance if a US litigant seeking judicial assistance abroad runs into trouble? If so, what form does that assistance take?

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Case of the Day: Chevron Corp. v. Salazar

The case of the day, Chevron Corp. v. Salazar (S.D.N.Y. 2011), is a minor discovery dispute in the New York branch of the Lago Agrio litigation that illustrates the war of attrition I suggested in Monday’s post. The case involves the adequacy of Chevron’s privilege log. The magistrate judge reviewed the supposedly privileged documents at issue in camera.

The case illustrates the (unfortunately common) misuse of claims of privilege in US civil litigation. For example, Chevron claimed privilege for a set of documents and gave the following description:

DOCUMENTS assembled, obtained, gathered, or compiled as part of a fact investigation at the direction of counsel and in anticipation of litigation or in preparation for trial, the assembling, obtaining, gathering, or compiling of which reflect the thoughts, impressions, legal theories, or litigation strategies of counsel regarding discovery proceedings pursuant to 28 U.S.C. § 1782 seeking discovery related to the LAGO AGRIO DISPUTES.

But in fact, said the magistrate judge, the documents “are all press releases and news stories related to the Lago Agrio litigation.” The defendants “could not have guessed this, however, based on Chevron’s categorical description of the documents.”

I don’t give Chevron too much blame for this. I think mistakes like this are generally a result of the way that document review happens in large cases—and I am speaking from experience here. A bunch of young associates get the unenviable job of “coding” documents for responsiveness and privilege. This isn’t what they signed up for when they went to law school. The consequences of under-designating documents as privileged are perceived to be much more serious than the consequences of over-designating, and this bias comes to light only when the judge undertakes an in camera review. Likewise, it is not uncommon to see privilege logs that, like Chevron’s in this case, don’t really provide a way to assess the claim of privilege intelligently.

For the most part, my sense is that the New York proceedings have played out on Chevron’s chosen field of battle, but today’s decision is the second in recent days where Chevron has faltered. The first, of course, was much more significant—the Second Circuit’s decision vacating Judge Kaplan’s preliminary injunction. But today’s decision must sting a little, too:

Distressingly, Chevron has taken a view of its own discovery responsibilities sharply different from the obligations it seeks to impose on the defendants and on non-parties. In a motion to compel production of documents in the possession of defendants’ counsel, Chevron was highly critical of privilege log descriptions that turn out to have been far more detailed than Chevron’s own. (Chevron Corporation’s Motion to Compel Andrew Woods and Laura Garr to Produce Individual Documents Listed on Their Privilege Logs at 1 & n .2, 4). Furthermore, Chevron withheld the public relations documents included in its privilege logs notwithstanding the fact that I had just issued an order indicating that similar documents could not be withheld by defendants’ attorneys. And, although I have focused here on the Category 260 Documents, some documents in other categories appear not to have been properly withheld because they are neither privileged nor subject to the work product doctrine.

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Case of the Day: H-D Michigan, LLC v. Hellenic Duty Free Shops S.A.

The case of the day is H-D Michigan, LLC v. Hellenic Duty Free Shops S.A. (E.D. Wis. 2011). HD-Michigan and Harley-Davidson Motor Co. sued Hellenic for breach of a trademark licensing agreement. The court issued a temporary restraining order effective for fourteen days, which enjoined Hellenic from using Harley-Davidson’s trademarks. In the case of the day, Harley-Davidson asked the judge to extend the order until it could effect service of process on Hellenic in Greece under the Hague Service Convention.

On the one hand, Rule 65(b)(2) provides:

[A temporary restraining] order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.

“A like period,” as the court noted, is generally held to mean a second fourteen days.

On the other hand, since the TRO is meant to prevent irreparable harm, it would seem intolerable if the plaintiff were to lose the protection of the injunction because of the time it takes to serve process abroad.

The judge solved this problem by citing some cases where the courts had granted extensions of a TRO beyond the time contemplated in the rule. I think the better answer is the answer I suggested in the post on 3M Co. v. Christian Investments LLC, the case of the day from September 7. The court should simply hold a hearing on a preliminary injunction. Although 3M is a case to the contrary, I think the court has jurisdiction to enter a preliminary injunction even before the defendant has been served with process, as long as the defendant receives sufficient notice and an opportunity to be heard to satisfy the Due Process Clause. I think that this approach would do less violence to the rules than the approach in today’s case, which more or less ignores the plain language of Rule 65(b).

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