The case of the day is Van Sommeren v. Gibson (Ohio Ct. App. 2013). The case involved a dispute in the dairy farming industry in Ohio that I won’t try to summarize. The plaintiff wanted the testimony of a non-party residing in the Netherlands. The trial court obliged by issuing a letter of request under the Hague Evidence Convention. But the defendant came to understand that the testimony would be taken following the Dutch procedure, in which the judge, not the lawyers, would question the witness and in which the judge would dictate the witness’s answers to the clerk, who would transcribe the judge’s dictation. The defendant asked the Ohio court for a protective order precluding the plaintiff from proceeding with the deposition on the grounds that it would not result in a verbatim transcript and there would be no opportunity for unrestricted cross-examination. The judge granted the motion. On appeal, the court affirmed.

I think much of what the court had to say on appeal was muddled and misguided. The court correctly noted that the Convention is not exclusive, citing Aerospatiale among other cases, notably Schindler Elevator Corp. v. Otis Elevator Co., 657 F. Supp. 2d 525 (D.N.J. 2009). But in Aerospatiale (and in Schindler) the issue was whether a party could be compelled to use the Hague Evidence Convention when seeking discovery from another party. The answer, of course, is: “it depends.” But when a party seeks discovery from a non-party, the issue raised in Aerospatiale doesn’t come into play, because there is no choice in such cases between discovery under the law of the forum and discovery under the Hague Evidence Convention: it’s the Convention, or nothing.¹ Actually, that’s not quite true. It may be that the foreign state’s domestic law has a procedure to permit discovery without requiring a letter of request, i.e., an analogue to § 1782. Also, US citizens abroad may be subject to subpoenas by US courts. But you get the point. In effect, the appellate court held that in cases where the adverse party will not be entitled to US-style cross-examination and there will be no verbatim transcript of the testimony, a party can be forbidden to make use of the Hague Evidence Convention even if it is the only way to obtain a witness’s testimony. That seems crazy to me. Suppose the Dutch witness had been willing to give an affidavit to one party or the other for use in summary judgment proceedings. The other party might not be able to take the witness’s deposition in time to oppose the motion, or the only way to take the deposition might be via the Dutch procedures that the court found to be so objectionable here. In that case, the thing to do is to seek relief under FRCP 56(d) (or the Ohio equivalent) and to explain to the judge why it’s not possible to rebut the showing in the affidavit on summary judgment.²Rule 56(d), formerly Rule 56(e), provides: ” If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” The answer is not to say that the affidavit should not be considered.

All that being said, the decision whether to grant the protective order, and indeed the decision whether to issue the letter of request in the first place, was within the trial judge’s discretion. Ultimately the holding is that the judge did not abuse his discretion. This may well be correct. But that doesn’t mean the reasoning is sensible.

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  Actually, that’s not quite true. It may be that the foreign state’s domestic law has a procedure to permit discovery without requiring a letter of request, i.e., an analogue to § 1782. Also, US citizens abroad may be subject to subpoenas by US courts. But you get the point.
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  Rule 56(d), formerly Rule 56(e), provides: ” If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.”