The case of the day is Cascade Yarns, Inc. v. Knitting Fever, Inc. (W.D. Wash. 2014). The claim in the case was for mislabeling of Knitting Fever’s yarns as to country of origin. Cascade wanted to take document discovery and depositions of the distributors of the accused yarn in Italy and Spain. Both Italy and Spain are parties to the Hague Evidence Convention, and both have made Article 23 declarations.
The judge took a pretty laissez-faire approach. Let the courts of Italy and Spain determine whether the letters of request are proper! “Whether the Letters Rogatory will be executed in light of Spain and Italy’s Article 23 reservations is a matter for the appropriate Spanish and Italian tribunals, rather than this Court, to determine.” I think that this is appropriate in close cases, but if it’s clear, for example, that the Spanish court simply will not execute the letter of request, then the US court, as a matter of comity, should consider not authorizing it. A letter of request imposes a burden on the foreign court or the foreign central authority, so it seems to me that US courts should be sensitive to that burden. Of course, this imposes some obligation on the parties to educate the judge about the relevant foreign law.
Update: I want to clarify that I don’t mean to imply that the parties did not seek to educate the judge about the relevant foreign law.