Anyone who has filed a motion for issuance of a letter of request knows that the Aérospatiale factors provide the framework for deciding whether the court should issue the letter. Right? But there is an important point that I think is indisputably true yet also rarely discussed. The question in Aérospatiale was whether a foreign defendant should have to produce documents in response to a request for production of documents under US civil procedure, or whether the plaintiff should instead have sought the evidence via a letter of request. (The situation is similar when a party seeks testimony from a foreign party via a notice of deposition). But that’s not the question at all when the party seeks evidence from a foreign non-party. In Aérospatiale, the question was whether to do the thing that the foreign party and the foreign state presumably want—serve a letter of request asking the foreign court to provide judicial assistance—or whether to do the thing that the US party presumably wants to do, serve a US discovery request. When you’re seeking discovery from a non-party, there’s no choice to be made between a US subpoena and a letter of request. Subpoenas can’t be served abroad.1 So it’s a letter of request, or nothing.
Comity is about not offending other states, and cooperating with them. Consider how a subpoena differs from a letter of request. A subpoena is a command. A letter of request is a request. You can see how a foreign state could be offended by service of a subpoena. By what right does a US court order someone in a foreign country to do something? But no foreign state will be offended by receiving a request from a US court. It’s what the foreign state wants and expects!
It’s a mistake, therefore, for judges to conduct an Aérospatiale analysis when deciding whether to issue a letter of request to a foreign court. The purpose and rationale of Aérospatiale are simply inapplicable. That’s not to say that US courts should simply hand out letters of request like candy. It would be good for US judges to try to ensure that letters of request are drafted so that they have a reasonable chance of being executed–something judges and most lawyers are not in a very good position to do. But that problem exists whether or not courts look to Aérospatiale.
This isn’t a new point: I’ve written about it before. But it is evergreen. I’m going to assign an image to it, since I plan to write about it whenever I see it come up: Sisyphus rolling his rock up the hill. I did the same with service by email and a scene from Moby Dick, and I hope I am not being unrealistic when I say that maybe my 100 or so posts on the issue over the years had some effect on how the issue was discussed.