The case of the day is South32 Chile Copper Holdings Pty Ltd v. Sumitomo Metal Mining Co. (N.Y. Sup. Ct. 2024). The case was for breach of contract; it had to do with “profits realized from operations at a Chilean gold mine.” South32 sought issuance of letters of request to three tax and financial advisory firms in the UK and the Netherlands under the Evidence Convention. The judge granted the motion, which was unopposed.

The case is a textbook example of one of the mistakes I’ve been harping on. It cites the Restatement and New York precedents, which more or less restate the multifactor test of Aérospatiale, and it goes through the Aérospatiale analysis in deciding whether to issue the letters of request to nonparties abroad. What does the Restatement actually say? Here is an excerpt,¹Restatement (Third) of the Foreign Relations Law of the United States § 442(1)(c). with the key language highlighted:

In deciding whether to issue an order directing production of information located abroad, and in framing such an order, a court or agency in the United States should take into account the importance to the investigation or litigation of the documents or other information requested; the degree of specificity of the request, etc.

The Aérospatiale analysis applies only when the US court is ordering the party abroad to produce documents. For when a US court orders someone in another state to do something, comity comes into play. Should the court instead defer to the law of the foreign country? Should it require the US litigant to make use of the Evidence Convention instead of ordinary US discovery procedure?

But none of this makes any sense when the person from whom discovery is sought is not a party to the case. It is almost axiomatic that a US court has no power to order a person outside the United States to produce evidence. Our law long ago relaxed the rules on the territorial limits on where summonses can be served, but we have not relaxed the rules on where subpoenas can be served. You might think that this is just a matter of one area of the law progressing more quickly than another, but I think there is a real principle at work. At common law a summons is not coercive. That is why common law civil procedure was not really effective in serving the needs of plaintiffs, and why the law developed coercive means to bring defendants before the court. I wrote a few posts about this legal history back in 2017. But a subpoena really is a command. So it’s not something that an American court can send to a foreign country.²I’m leaving aside the exceptions.

That’s not to say courts should issue letters of request willy-nilly. Issuance of letters is within the court’s discretion. The court can take into account the relevance of the evidence, the schedule of the case, whether the discovery is proportional to the needs of the case, and any other factors that are relevant. But there is no reason to consider the competing interests of the two countries, whether the evidence is important enough to justify interfering in another country’s business, and so forth, especially since when those factors weigh against US discovery procedures, the alternative is a letter of request or a letter rogatory. When the court wants to express comity, it simply asks the foreign court for assistance and leaves it to the foreign court to decide whether or not to grant the request (of course, bearing in mind the obligations that the Evidence Convention imposes on states that are parties to it). In other words, it sends a letter of request. That’s what I mean when I say that letters of request embody comity.

In short: do not do the Aérospatiale analysis when the evidence is sought from a non-party. It doesn’t make sense.

Image credit: Katja Radon (CC BY). Not the mine related to this case, as far as I know.

• 1
  Restatement (Third) of the Foreign Relations Law of the United States § 442(1)(c).
• 2
  I’m leaving aside the exceptions.