The case of the day is Salt River Project Agricultural Improvement and Power District v. Trench France SAS (D. Ariz. 2018). The Salt River Project sued Trench France in a case arising out of an explosion at a Salt River power plant. Trench France brought an interesting motion seeking appointment of a commissioner under Chapter 2 of the Hague Evidence Convention, so that all information it produces to Salt River in discovery will be produced under Chapter 2.

The context in which Trench France made its motion is unclear. Were there prior fights in the case about discovery? Did Salt River already seek to make use of Chapter 1? But what makes the motion so unusual is that the French defendant is actively seeking to invoke the Convention, rather than raising it defensively in response to a motion by an American plaintiff seeking to take discovery via the FRCP.

It’s worth reminding ourselves about Chapter 2 of the Convention. The more common path to discovery is Chapter 1, under which the US plaintiff submits a letter of request to the US court, which then approves it. The letter is then sent to the foreign central authority for execution. Chapter 1 is not that favorable for US plaintiffs, because especially in continental Europe, it leads to European-style testimony in which the judge asks most of the questions, there is limited if any opportunity for follow-up, and the testimony may not even be transcribed verbatim.

Chapter 2 is more congenial for US lawyers. Under Chapter 2, the US court appoints a commissioner, and once the foreign state grants permission, the commissioner is then empowered to take evidence without compulsion. This use of commissioners is the traditional common law method for taking evidence abroad and typically will lead to be better results than a letter of request. Either Chapter 1 or Chapter 2 allows the French defendant to produce discovery without running afoul of the French blocking statute; but Chapter 2 is more favorable for the plaintiff than the defendant, which is what makes the motion somewhat surprising.

Dare I say that the motion an example of good faith on the part of a European defendant responding to a US plaintiff’s desire for discovery in light of European blocking statutes?