The case of the day is Hamilton v. American President Lines Ltd. (E.D. Pa. 2012), one of the thousands of cases that are part of the multi-district litigation on asbestos product liability. As with many MDLs, it’s difficult to decipher the docket. Neil Hamilton is one of the plaintiffs asserting claims under the Jones Act and general maritime law against shipowners and others. Hamilton is a US national residing in France. He was diagnosed with mesothelioma in 2010, and his lawyers noticed his deposition in order to preserve his testimony because his health had significantly declined; they also sought appointment of a commissioner to take the deposition. The deposition was to be taken in Mr. Hamilton’s home.

The shipowners objected to the deposition on the grounds that Hamilton had not complied with FRCP 28 and that the deposition should be taken using the mechanisms of the Hague Evidence Convention. This is an odd role-reversal. Usually, it is the American party that seeks to take an ordinary deposition and the foreign party that resists on the grounds that the American party must make use of the Convention’s mechanisms. Usually, it is the American party who wants the foreign party’s testimony and the foreign party who is unwilling to appear voluntarily. Here everything is reversed. Hamilton, the French resident, affirmatively sought to give a deposition in France.

The judge’s reasoning was doubleplusungood. She reasoned that the deposition was not authorized by the Convention, stating, notably, that a deposition before a commissioner under Article 17 of the Convention was impermissible because France had not appointed a commissioner. (As we’ll see below, commissioners are appointed by the court of the state where the action is pending, not the state where the evidence is to be taken). But she went on to say that the Convention was permissive, not mandatory, and she did an Aerospatiale analysis and concluded that it was permissible to proceed under the FRCP rather than under the Convention. FRCP 28(b)(1)(D) permits a deposition before a commissioner. Therefore, the court concluded, the deposition was permissible.

This makes little sense. First, as I noted, the judge was wrong about the applicability of Article 17. Second, it doesn’t make sense to look at this case through the lens of Aerospatiale. Aerospatiale is the appropriate lens where the foreign party resists US discovery and the court has to decide whether or not to compel the discovery via the ordinary mechanisms of FRCP 30 to 36, or whether to use the letter of request mechanism. When a court does an Aerospatiale analysis and determines, for example, that a foreign party must give a deposition under the FRCP, the result is either that the witness has to travel to the United States or, if the witness is to be deposed in the foreign country and is not a willing witness, that the deposition takes place using one of the procedures authorized for the Convention to take evidence from unwilling witnesses. But here, Hamilton is a willing witness. And as explained below, Hamilton’s lawyers did not comply with the requirements France has placed on depositions before a commissioner.

Here is what I think is the correct analysis:

Under FRCP 28(b)(1)(A), a deposition may be taken “under an applicable treaty or convention.” Article 17 of the Convention provides:

In a civil or commercial matter, a person duly appointed as a commissioner for the purpose may, without compulsion, take evidence in the territory of a Contracting State in aid of proceedings commenced in the courts of another Contracting State if—

(a) a competent authority designated by the State where the evidence is to be taken has given its permission either generally or in the particular case; and

(b) he complies with the conditions which the competent authority has specified in the permission.

A Contracting State may declare that evidence may be taken under this Article without its prior permission.

The reference to a “commissioner” is clearly a reference to the commissioner appointed by the court of the state where the action is pending, not the state where the evidence is to be taken. This is obvious, but it is confirmed in the State Department Circular on judicial assistance in France. I think the judge simply got this wrong. Here, the judge commissioned a resident of the UK to take the deposition. There is no question of compulsion, since here Hamilton wanted to testify. The only issue under Article 17 is whether France has given permission for the deposition by a commissioner to take place.

France has made a detailed declaration concerning the procedure to be followed under Article 17:

In accordance with the provisions of Article 17, the Service Civil de l’Entraide Judiciaire Internationale, Ministère de la Justice, has been designated as the authority competent to authorize persons duly appointed as commissioners to take evidence without compulsion in aid of proceedings commenced in the courts of a Contracting State.

This authorization, which will be given for each particular case, accompanied if need be by particular conditions, shall be subject to the following general conditions:

1. the evidence must only be taken within the precincts of the Embassies;
2. the Service Civil de l’Entraide Judiciaire Internationale must be given due notice of the date and time at which the evidence is to be taken so that it can make representatives available if necessary;
3. the evidence must be taken in a room to which the public has access;
4. the persons who are to give evidence must receive due notice in the form of an official summons drawn up in French or accompanied by a translation into French, and stating:

(a) that the taking of evidence for which the person concerned is summoned is based on the provisions of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, and is part of the judicial proceedings taken in a court designated by a Contracting State by name;

(b) that appearance for the giving of evidence is voluntary and that non-appearance cannot lead to prosecution in the requesting State;

(c) that the parties to any action consent to it or, if they do not, their reasons for this;

(d) that the person who is to give evidence is entitled to legal advice;

(e) that the person who is to give evidence can claim dispensation or prohibition from doing so.

A copy of the summonses will be sent to the Ministère de la Justice.

5. The Service Civil de l’Entraide Judiciaire Internationale will be kept informed of any difficulties.

The application for authorization, which will be addressed to the Ministère de la Justice by the requesting authority, should specify:

1. the reasons why this method of investigation was chosen in preference to that of Letters of Request, bearing in mind the judiciary expenses involved.
2. the criteria for designating the commissioners when the person designated does not reside in France.

So the correct procedure would have been to arrange for the deposition to be taken by the Commissioner in the US embassy; and to make the necessary application to the French authorities, including an explanation of why a Briton rather than a French national was chosen as the commissioner. It’s not clear whether the defendants’ objection to the deposition would bear on the French authority’s response to the application. All of this shows, by the way, why Article 17 is rarely used.

If this was too complicated, Hamilton also could have made use of Article 15, which permits a US consular agent to take a deposition “within the area where he exercises his functions” of a US national without compulsion. France has not made any declaration under Article 15, and thus no permission is required. The State Department circular suggests that the deposition still must take place within an embassy or consulate, though I am not sure why this should be so, as France has not made a declaration under Article 15, but it is always wise to take the State Department’s guidance in these matters seriously.