Letters Blogatory’s 2012 Legislative Agenda

This is the third and last in my series of end-of-the year posts—the Letters Blogatory legislative wish list for 2012. I will unleash Letters Blogatory’s crack team of lobbyists to get the ball rolling, but if one of these suggestions strikes you as a good idea, why not send a note to your representative or senator in the new year and make your opinion count?

Multi-District Judicial Assistance Proceedings

Statute of Sun TzuAccording to Sun Tzu:

Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.

Unfortunately, this lesson has been lost on Chevron and the Lago Agrio plaintiffs, who for the last year have been locked in a classic war of attrition, filing perhaps dozens of requests for judicial assistance under 28 U.S.C. § 1782 between them, in districts all over the country. Each case raised its own issues, of course, as each focused on a different witness. But much of the analysis under § 1782 was the same in many of the cases. The parties must have spent millions of dollars between them on these proceedings. How much of that was wasteful duplication of work?

As I noted in my post on this topic, there is at least some precedent for using the statute on consolidation of multi-district proceedings to consolidate judicial assistance proceedings around the country. But it seems rare—I could only find one example in the reported cases—and the statute, which applies to “civil actions involving one or more common questions of fact,” doesn’t have to be read to apply to judicial assistance proceedings. So why not amend the statute to make it clear that it does apply to judicial assistance cases.

Updating Massachusetts Law

Old Massachusetts State HouseThis year, the Massachusetts General Court referred a bill to enact the Uniform Foreign-Country Money Judgments Recognition Act, a bill to enact the Uniform Enforcement of Foreign Judgments Act, and a bill to enact the 2000 version of the Uniform Arbitration Act to the Joint Committee on the Judiciary, but the bills didn’t make it out of committee. In my opinion, Massachusetts is fortunate to have state and federal courts that are among the best in the nation, but part of what will help keep Massachusetts an attractive forum for litigants is a commitment to modernize our laws. Let’s get cracking, Massachusetts legislators!

Photo credits: 663highland (license), Mark Crawley (license)

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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