Tag Archives: Chile

Case of the Day: Calderon v. Experian Information Solutions

The case of the day is Calderon v. Experian Information Solutions, Inc. (D. Idaho 2012). Jose Luis Calderon sued Experian for violations of the Fair Credit Reporting Act. He sought to take the depositions of three employees of Experian Services Chile, S.A., Experian’s “sister corporation,” located in Santiago. The witnesses were people who had “processed several of the numerous requests that [Calderon] had made to Experian to have incorrect information removed from his credit report.” Experian argued that Calderon could not take the depositions under the Federal Rules of Civil Procedure but instead had to proceed by letter rogatory (Chile is not a party to the Hague Evidence Convention). “This would mean,” the judge noted gravely, “that a Chilean judicial officer, rather than Plaintiff’s attorneys, would conduct the examination of the witnesses.” The horror!

While the judge’s discussion of the relevant rule, FRCP 30, was a little muddled, the judge concluded, correctly I think, that Calderon could compel Experian to produce the three witness only if they were officers, directors, or managing agents of the company. 1 They plainly were not officers or directors, so the question was whether they were managing agents. The judge construed the term “managing agent” rather expansively for my taste to find the Chilean employees were managing agents of the US party. The court considered Chile’s possible sovereignty concerns but found that because the depositions were to be taken by notice rather than by subpoena, there were no such concerns. This is surprising, since even though Chile is not a party to the Hague Evidence Convention, it bears noting that under Aerospatiale the interests of the foreign state are to be considered as a factor in determining whether discovery can proceed under the FRCP. In other words, I do not think that it is right to say that the foreign state’s sovereignty concerns necessarily carry no weight just because the target of the discovery is a party rather than a non-party.

Notes:

  1. Under FRCP 30(b)(1), a party seeking a deposition of a corporation or other entity can designate a corporate representative by name and take the risk that the representative will not know the answer to the particular questions asked. The alternative is proceeding under FRCP 30(b)(6), identifying the topics of the questions and putting the burden on the corporation to designate a representative who will be prepared to answer the questions.

Case of the Day: Hughes v. Ashton

The case of the day Hughes v. Ashton (Cal. Ct. App. 2011), a case on service of process in Chile, is clear and well-reasoned. Three cheers for Judge Reardon!

Hughes and Ashton had a dispute over real property in California that they had jointly owned. Hughes wrote a letter concerning the dispute to Ashton at Ashton’s address in Chile, and she received a response from Ashton’s lawyer, Diaz. When the parties could not settle the dispute, Hughes sued. She served process by mailing the summons and complaint to Ashton’s address in Chile via registered mail, and she obtained a signed mailing receipt. When Ashton did not appear, Hughes sought and obtained a default judgment. Years later, Ashton sought to set aside the judgment.

The trial court found that Ashton had actually received the papers in Chile and signed the receipt. Ashton argued nevertheless that service by registered mail was impermissible. The Court of Appeals rejected the argument. First, it noted that service by mail was proper under the law of the forum, in particular sections 413.10 and 415.40 of the California Code of Civil Procedure.

Chile is a party to the Inter-American Convention but not the Hague Service Convention. Unlike the Hague Service Convention, the Inter-American Convention is neither mandatory nor exclusive. Therefore, whether the service complied with the Convention was immaterial. The court recognized that considerations of comity could lead to the conclusion that the plaintiff should use a method of service permitted by the law of the place where the service was accomplished, but the court held that in the circumstances of this case, where the defendant did not seek to quash the service at the time and waited for years after the judgment to seek relief, comity was not relevant.

The court did, however, note that the validity of the service under California law could not guarantee that the Chilean courts would enforce the judgment:

While it may be that Chile would not recognize the California judgment because Ashton purportedly was not served in a manner authorized under Chilean law, that does not mean that service was improper under California law and that the California judgment is void in this state.

I think the judge got everything about this case right. He recognized that in the first instance, the validity of the service depends on the law of the forum; he recognized that because the Inter-American Convention was non-exclusive, Chilean law did not apply, except as a matter of comity, which the court judge declined to grant; and he explained why, despite the outcome of the case, American plaintiffs would do well to bear the law of the state where the defendant is served in mind—if the ultimate goal is a judgment enforceable in a foreign state, the willingness of an American court to grant a judgment in the plaintiff’s favor is not enough.