The case of the day, NewMarket Corp. v. Innospec Inc. (E.D. Va. 2011), is an example of the use of ordinary discovery techniques to avoid the need to seek discovery from a foreign source under the Hague Evidence Convention.
Both parties were in the business of selling gasoline additives. NewMarket claimed that Innospec had given kickbacks to government officials in Iraq and Indonesia and bribed them to ensure that NewMarket’s products would fail various tests or would be deemed an unsuitable alternative to Innospec’s product. NewMarket sued, asserting violations of antitrust law among other claims.
NewMarket served an interrogatory on Innospec seeking information about all payments the company had made to government officials in Iraq or Indonesia. Innospec answered the interrogatory and provided various information about the payments, but the answer did not include information NewMarket had requested about the bank accounts through which the payments were routed, the communications that accompanied payments made by wire transfer, etc. Innospec asserted that it lacked information about the bank accounts through which the payments may have been funneled or other interbank information. NewMarket moved to compel a further response.
Innospec argued that NewMarket could obtain the information from the relevant banks via the Hague Evidence Convention’s procedures and that it should not be required to make inquiries of the banks to help NewMarket make its case. But Innospec admitted that it had not even asked the banks for the information NewMarket was requesting.
As a technical matter, the question was whether the information was within Innospec’s “control.” The court gave the notion of “control” a broad reading, holding that Innospec at least had to make an inquiry in order to determine whether the information was available to it. NewMarket should be required to engage the Convention’s mechanisms only if Innospec could not obtain the information by inquiring of the banks.
This result seems sensible insofar as Innospec was its own banks’ customer, and they may have an obligation or at least a business motive to provide the information to Innospec. The case is a reminder that sometimes simplicity works—an interrogatory may accomplish in thirty days what a letter of request might take months to do.
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