Max, thanks for the comment!

I am not suggesting that the violation of French law necessarily affects the admissibility of the evidence in the US court. But I do think that lawyers ought to be careful to comply with the law of the foreign states where they take evidence or serve process. For one thing, violations of foreign law in connection with US proceedings can cause diplomatic headaches for the United States (foreign countries have protested violations of their law in such cases in diplomatic notes that you can find in various places, e.g., the Born and Rutledge casebook). For another thing, in some cases a violation of the applicable foreign law may actually lead to a criminal charge against the US lawyer in the foreign state. But more fundamentally, I think it’s a question of professionalism—since one of our profession’s main values is promotion of the rule of law, we should practice what we preach by following the applicable law, even when it’s foreign law. It’s not really the rights of the plaintiff himself that are at issue—it’s the sovereign interests of the French state itself.

Also, just to avoid misunderstanding, I’m not suggesting that Hamilton’s deposition should have had to follow French procedure or be supervised by the French courts. Hamilton wasn’t invoking the Convention’s letter of request procedures, in which a French judge would control the proceedings. He was instead invoking the alternative methods permitted by the Convention in cases involving willing witnesses. A deposition before a commissioner or a consular official could follow the typical American format.

Stepping back, two of the biggest issues underlying international civil procedure are jurisdiction and admissibility: we need to make sure depositions and the like are taken according to the procedures of both countries, so that both have appropriate jurisdiction and admissibility to utilize the testimony and to act upon it, such as by punishing perjury, in either court.

Here, it doesn’t matter that the commission procedure advocated by France was not followed, because the deposition is wholly irrelevant under French law. The defendants are not French, and have no connection to France. French law does not even arguably apply to the claim or to the enforcement of the judgment the plaintiff is seeking. France shows up in this case solely because it is the current location of the plaintiff, but the plaintiff has voluntarily waived any and all rights he could have as result of that.

Put another way, the defendants have no conceivable interest in having French courts have jurisdiction over the conduct at the deposition, or in having this deposition be admissible under French law. There’s thus no real reason to follow French procedure, because when all is said and done the only party with any rights under French law is the plaintiff, and he has waived those rights.

Frankly, this case looks to me like yet another example of an asbestos defendant trying to run out the clock by hoping the plaintiff dies of mesothelioma before adequate testimony can be taken. I’ve seen this tactic deployed before, and it sometimes works given the speed with which mesothelioma kills its victims once they’ve been diagnosed.