The case of the day is Rosales v. FitFlopUSA, LLC (S.D. Cal. 2013). Rosales, who had bought FitFlop footware, sued the company, alleging that FitFlop had represented “that its products will provide wearers with a variety of health benefits, but in reality FitFlop Footware does not provide the promised benefits and may actually cause or exacerbate the type of problems it claims to protect against.” Out of such stuff is private international law made. The case was a putative class action; the judge had not yet ruled on class certification.
Rosales applied for issuance of a letter of request to take depositions of the inventors, a researcher who conducted studies on FitFlop footware, and certain FitFlop former employees. Rosales’s proposed letter of request also sought document discovery. All of the discovery was to occur in the UK. The judge granted the application in part and denied it in part. The particulars are not that interesting. The reason I highlight the case is that Rosales was not proceeding under the Hague Evidence Convention, as she might have done. Instead, she was proceeding under the Evidence (Proceedings in Other Jurisdictions) Act 1975, a statute similar in some respects to the familiar 28 U.S.C. § 1782. This is entirely permissible under Article 27(c) of the Convention, which provides:
The provisions of the present Convention shall not prevent a Contracting State from—
* * *
permitting, by internal law or practice, methods of taking evidence other than those provided for in this Convention.
The moral of the story is that just as it often makes sense for foreign litigants to seek discovery in the US under § 1782 rather than through the central authority mechanism of the Hague Evidence Convention, it may sometimes make sense for US litigants to seek discovery abroad under a similar statute, where one is available.