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

By: Case of the Day Behrens v. Arconic | Letters Blogatory

Case of the Day Behrens v. Arconic | Letters Blogatory — Thu, 02 Jan 2020 11:01:28 +0000

[…] 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 […]

By: Ted Folkman

Ted Folkman — Fri, 04 Mar 2016 21:50:05 +0000

In reply to Vivian Curran. 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!

By: Vivian Curran

Vivian Curran — Wed, 02 Mar 2016 20:19:16 +0000

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.