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!