Article of the Day: Should the Federal Rules of Civil Procedure Be Amended to Address Cross-Border Discovery?

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Zachary D. Clapton has a pointer to a new article by Michael M. Baylson and Steven S. Gensler on whether the Rules of Civil Procedure should be amended to account better for cross-border discovery. I do a lot of cross-border discovery, and so I have some thoughts. I know I called this post “article of the day,” and so you might be expecting me to write about the article. But rather than respond to the article, which is well worth reading, I thought I would lay out some of my own thinking on this.

In my view the biggest disconnect between the rules as they stand and cross-border discovery practice has to do with case schedules. Under current practice, the parties must confer and try to agree on a discovery plan that includes, among other things, a proposal on “when discovery should be completed.” FRCP 26(f)(3)(B). But I get calls all the time from people who say they need to “serve a subpoena” abroad and that their discovery cutoff is in a month. It would be good to have the possibility of cross-border discovery included in the list of items that the parties must discuss when arriving at their discovery plan, so that their discovery deadline can be more realistic.

A second disconnect is the way courts treat motions for issuance of letters of request to non-parties. All too often, courts try to do an Aérospatiale analysis to decide the issue. That is a category mistake. The point of Aérospatiale is to help court decide when parties have to respond to US discovery requests and when they can require opponents instead to make use of the Evidence Convention. The key to the issue is comity. But non-parties, whether they are in the United States or abroad, never have to respond to ordinary discovery requests. They can only be compelled to produce evidence pursuant to subpoena or, in the case of non-parties abroad, pursuant to a letter rotatory or a letter of request (because in general, a subpoena may only be served within the United States, FRCP 45(b)(2)). So there is no choice to be made and no comity analysis needed to decide which method is right. And anyway, letters of request, which are requests to foreign governments, embody comity. Subpoenas are issued as a matter of course, and in fact, lawyers can issue subpoenas without court involvement. (FRCP 45(a)(3)). Of course, this won’t work for letters of request. I would favor a new rule, call it Rule 45.1, that says in substance that a court should issue a letter of request as a matter of course, provided that the party requesting the letter satisfies the court that it is proper under the Convention and that no one proves that the letter would be rejected by the foreign court (e.g., because it seeks documents but the foreign state has an unqualified Article 23 declaration, or whatever). Maybe it would be sensible to include traditional letters rogatory, too. What I like about this approach is that it mirrors the receptivity/circumvention analysis in Section 1782. Cool!

Do I favor codifying Aérospatiale itself in the rule, or modifying Aérospatiale by imposing a rule of first resort through rulemaking? Not really. Aérospatiale gives courts lots of discretion, and I am not sure what would be gained by trying to codify it.

One final point, though it is not, strictly speaking, about discovery. It is more and more common to take depositions abroad, or to take testimony abroad via a letter of request. But neither US-style depositions nor testimony taken by a foreign judge are usually ready to be admitted into evidence at trial as-is. Under current law, trial testimony generally has to be taken in open court, that is, with the witness present in the courtroom with the judge, jury, and lawyers. FRCP 43. But “for good cause in compelling circumstances and with appropriate safeguards,” videoconferencing can be allowed. Cue the patriotic music: I am a big believer in the courtroom as a kind of Greek drama that brings everyone together in one place at one time to talk about one thing and where the jury, like the chorus, speaks for the community. But under current practice, where foreign witnesses’ testimony it is 2023, after all, and perhaps the standard in Rule 43 should be softened so that witnesses from abroad who want to testify but cannot, as a practical matter, come to court can be heard can be heard by videoconference. It probably doesn’t belong in the rules, but the courts, perhaps via the Administrative Office of the US Courts, could look into adopting or adapting the standards of the HCCH’s Guide to Good Practice as a way to reduce technical barriers to taking testimony from willing witnesses via videoconferencing.

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