Paper of the Day: Vivian Curran on “US Discovery and Foreign Blocking Statutes”

Readers, I recommend to you Vivian Curran’s forthcoming paper titled “US Discovery and Foreign Blocking Statutes.”

I had the pleasure of meeting Vivian when we both spoke on a panel on Mass Torts Litigation in a Shrinking World at Penn back in 2012. She is a noted comparativist, and so she is in a very good position to explain the French to us and to explain us to the French. The paper is a useful overview of the French feeling about being subject to broad US pretrial discovery (it’s contrary to their conception of the judicial process, in which the judge, not the parties, can compel discovery, and then only of particular documents), the US feeling about the French blocking statute (a combination of skepticism about whether French firms, in practice, face legal consequences for complying with US discovery requests, and befuddlement about how the French could object to a US court compelling a party within its jurisdiction to comply with US procedural law), and the Hague Evidence Convention, intended to bridge the gap.

The paper makes a common European critique of the American approach to the Convention. Curran asserts that US courts seek to “elude” the Convention when they routinely apply the FRCP to discovery abroad. There are two sides to this story, though, and it is not clear that the Convention should be construed as mandatory: the Practical Handbook recognizes a legitimate difference of opinion on this issue. The real European concern is sovereignty. The French and Germans don’t like it when American lawyers take evidence on their territory. Noëlle Lenoir has even proposed that US practice in the face of these sovereignty concerns and the blocking statutes deprives European litigants of their rights under the European Convention on Human Rights, because a party can be deprived of its right to present its case if it refuses to participate in discovery. Of course, from an American perspective this is a difficult claim, because the fairness of the trial is strongly connected with the parties’ ability to obtain the evidence they need to present their cases.

The main compromise has been proposed is a rule of first resort to the Convention. But as Curran points out, given our system of stare decisis it is unlikely US courts would change course on this without some sort of legislative or rulemaking action.

Curran recognizes some room for hope: she notes the recent amendments to the FRCP narrowing the scope of discovery, and the new German legislation permitting document discovery in Germany to the extent consistent with the Convention. I agree.

The only point in the paper that I find really puzzling is the assertion that foreign states and litigants may regard § 1782 as an infringement on foreign states’ sovereignty. Come again? The basic objection to US discovery in France and Germany is that it is improper for the courts of the United States to give extraterritorial effect to their procedural law on discovery, especially in the face of blocking statutes and the like. Fair enough. But § 1782 does not raise this concern. It permits parties to take discovery in the United States, which as far as I can see has no bearing on any foreign state’s sovereignty. The foreign court is free to exclude or disregard the evidence if it likes or even to forbid the parties before it to resort to § 1782. And the receptivity of the foreign court to evidence gathered in the United States is one of the factors courts use in deciding whether to authorize discovery. And if I may give a report from the field, so to speak, you might be surprised just how enthusiastic Europeans can be about § 1782 when they find that there is evidence in the United States that they need for their cases and that American courts will allow them to get it. The light dawns!

3 responses to “Paper of the Day: Vivian Curran on “US Discovery and Foreign Blocking Statutes””

  1. Vivian Curran

    Thank you, Ted, for your comments on my article on U.S. discovery and blocking statutes.
    With respect to Section 1782, your comments are consistent with those I have heard from other U.S. practitioners in international law. Nevertheless, Section 1782 is quite controversial in France. In a 2014 article in one of the most important law publications in France, “La Semaine juridique,” written by a French judge, together with a lawyer and a professor, Section 1782 is described as a “destabilizing” mechanism, allowing a private party to seek an advantage of surprise in an ex parte procedure that can result in a “traumatic” effect on its adversary. They characterize it as a manoeuver that gets around the Hague Convention, letters rogatory, etc. See Pauline Dubarry et al., “L’Obtention des preuves en France et a l’etranger”, 28 La Semaine juridique, 14 juillet 2014, 1418, 1419. It may also be of interest to your readers in this context that France has always maintained that every signatory to the Hague Evidence Convention is obligated to follow the Convention’s procedures, rather than national ones. On the other hand, as you point out, where it is the judge in France who asks his/her U.S. counterpart for assistance, Section 1782 is a tool of great assistance and no doubt appreciated within the confines of that case.

    1. Thanks, Vivian, for the comment. I think, as you suggest, there is a real culture clash here. Of course, Section 1782 proceedings are never truly ex parte, because the respondent has the opportunity to argue that the statutory prerequisites were not satisfied or that the Intel factors do not favor discovery, once the subpoena has issued. In fact, foreign parties sometimes prefer to wait for the subpoena to issue before raising their objections, because it drags out the process a bit, and there is a chance the judge will deny the ex parte application without the foreign party having to do anything.

      While there are some 1782 cases in fields like family law, libel, and the like, for the most part (and this is anecdotal) parties engaged in 1782 litigation are sophisticated businesses, and the disputes are generally commercial. So I am not sure what to make of the view that having to participate in a 1782 case, or having to face evidence obtained via a 1782 proceeding, is “traumatic.” Perhaps some nuance was lost in translation!

  2. […] stateswoman, is a friend of Letters Blogatory and is eminently qualified to give an opinion. She is no friend of US discovery when it runs up against French law, but as I understand the appointment, she is not being asked to opine about how the […]

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