The case of the day is Axtria, Inc. v. OKS Group, LLC (E.D. Pa. 2021). As regular readers know, for many years I have been on a mission to try to stem the tide of bad decisions holding that, in a case where the Service Convention applies, and where the state of destination has objected to service under Article 10, service by email is proper. I’ve probably written dozens of posts on the question. In recent months and years the tide has indeed started to turn, and we’ve begun to see decisions that get this right. I’m certainly not going to abandon the issue or stop writing about it, but I do think that we (the community of lawyers who care about this stuff) have made enough progress on this issue that I can safely turn some attention to a second question that courts get wrong and that needs fixing, this time in the Evidence Convention.

We know from Aerospatiale that the Convention is not exclusive. That is, if you are seeking evidence abroad, you can make use of the Convention if you want, but if there are other means available, you can use them instead. The courts will do a comity analysis to determine whether, in a particular case, you should be required to use the Convention in preference to other available methods.

Aerospatiale was intended to apply in cases where party A sues party B, and where B is, say, a foreign corporation. In what circumstances should A be allowed to seek discovery of B by way of an ordinary request for production of documents, if complying with the discovery request would cause B to violate its local law? The Aerospatiale factors are plainly relevant to that kind of case: How important is the evidence to the case? How specific is the request? Did the information originate in the United States, or abroad? Are there other means of obtaining it? How do we weigh the interests of the United States and the foreign country?

But Aerospatiale was not intended to apply in cases where party A sues party B, A seeks evidence from C, and C is in a foreign country. Why? Because in such cases, the only way to get discovery from C under the law of the forum (let’s say the FRCP) is via subpoena (since C is a non-party, you cannot simply serve discovery requests on it). But a US subpoena can only be served in the United States. (See FRCP 45(b)(2)).¹There is a small exception for subpoena served on US nationals abroad under 28 U.S.C. §1783, which I’ll ignore here. And anyway, even if you could serve a subpoena abroad, the act of serving it, or of taking the evidence in a foreign country, would, in many countries, be a violation of local law. Whether or not you would be breaking the local law by serving the subpoena abroad, a US subpoena abroad carries no enforcement oomph. So in most cases where the witness is a third party, there is no decision to be made between discovery under ordinary US discovery procedures and use of the Convention, because there is no discovery available under ordinary US procedures. This is why judges have observed that the use of the Convention is “virtually compulsory” when the witness is a third party.

Nevertheless, when A asks a US court to issue a letter of request to the authorities in C’s country to take evidence from C, US courts will often mechanically slog through an Aerospatiale analysis, and sometimes they will refuse to issue the letter. This is the next wrongheaded but common move I want to take on. Am I suggesting that comity has no role to play in third-party discovery? No way. Issuing a letter of request is comity in practice, and proceeding to take discovery without a letter of request, particularly when the discovery violates local law or the Convention in the absence of foreign government permission, is the opposite of comity. But when the witness is a third party, it is really for the foreign court to decide whether, as a matter of comity, it will assist the US court in taking evidence, and not for the US court, which can’t compel discovery in any case.

What about a case with a willing witness? On to the case of the day. The parties wanted to take the deposition of two willing witnesses (both Indian nationals) in India, and there was a dispute about whether the depositions should be taken under the FRCP or under the Convention. Pause and ask whether this way of framing it makes any sense. I do not think it does. What you are really asking is whether A should be allowed to take the depositions in India, even though the Convention plainly requires A to obtain the Indian government’s permission. The court first decided to disregard the State Department’s correct guidance on this issue and then undertook an Aerospatiale analysis. This makes no sense, because it is not as though there was a choice between two ways of taking the discovery. The court decided to allow the depositions to go forward without Indian government permission. I don’t know how seriously India will take this. Because it is a common law country, I assume it is on the more permissive side of things. But can you imagine doing this in Switzerland, for example?

I am going to be on the lookout for cases that raise issues like this. My hope is that we can stem the tide. Readers, please do your part by sending me examples, and also by always remembering to obtain permission, when required, before taking evidence from willing witnesses abroad! (And if you find yourself in this situation, please reach out if you need help!)

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  There is a small exception for subpoena served on US nationals abroad under 28 U.S.C. §1783, which I’ll ignore here.