The case of the day is Autotech Technology Development, Inc. v. Carbopress SpA (E.D. Mich. 2024). Autotech had a contract dispute with Carbopress, an Italian firm, and brought suit in federal court in Michigan. Carbopress sought issuance of a letter of request seeking to take the depositions of two witnesses in Italy. Autotech did not oppose the motion outright, but it asked that the court order that its counsel be entitled to participate remotely by video in the Italian proceedings and that Carbopress pay for an interpreter.

The judge correctly refused to order that the US party’s counsel be permitted to attend by video or that an interpreter interpret the proceedings. A letter of request is just that, a request, not an order. It embodies comity. The judge ordered Carbopress to submit a revised proposed letter of request that requested, not ordered, permission to attend remotely and permission to have an interpreter. And the judge specifically noted Article 9 of the Evidence Convention, which provides that while ordinarily the law of the requested state will govern the proceedings, the requesting authority can ask for special measures to be used, and the requested state is supposed to use them “unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties.”

Likely Carbopress, an Italian company who planned to have Italian lawyers at the depositions, was comfortable with the ordinary course of proceedings in Italy, in which the Italian judge questions the witnesses. It is unclear whether the letter of request requested that counsel be permitted to ask follow-up questions. But there is no reason US counsel cannot request greater departures from the ordinary foreign law as special measures. For example, the letter of request can request that the US lawyers lead the questioning. Perhaps an Italian judge will say yes and perhaps not. Perhaps a “no” will be justified by the considerations in Article 9, but the worst that can happen is that the Italian judge says no. A letter of request, after all, is just a request.

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