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Discovery of Documentary and Other Evidence in a Foreign Country

Published online by Cambridge University Press:  27 February 2017

Robert B. von Mehren
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Extract

There are substantial differences between attitudes in the United States and those in foreign jurisdictions towards litigation in general and pretrial discovery in particular. Thus, in the United States, there is a breadth of pretrial discovery that cannot be found in any other legal system. Moreover, factual investigation in the United States is largely controlled and conducted by the attorneys for the litigants rather than by the judiciary which, in many other legal systems, is responsible for such investigations in a litigated matter.

Type
Current Developments
Information
American Journal of International Law , Volume 77 , Issue 4 , October 1983 , pp. 896 - 902
Copyright
Copyright © American Society of International Law 1983

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References

1 Rule 28(b); 28 U.S.C. §§1781 and 1782 were also amended.

2 Amram, , The Proposed Convention on the Taking of Evidence Abroad, 55 A.B.AJ. 651 (1969)Google Scholar.

3 23 UST 2555, TIAS No. 7444.

4 See Report of the U.S. Delegation on the Convention, 8 ILM 804, 806 (1969).

5 This is the only multilateral convention on this subject to which the United States is a party. It should be noted, however, that the United States has participated in the negotiation of the Inter-American Convention on Letters Rogatory, 14 ILM 328 (1975). This Convention and its Additional Protocol of 1980 were signed by the United States, but neither has yet been ratified. On the Protocol, see Trooboff, Current Developments Note, 73 AJIL 704 (1979).

6 123 Cal. App. 3d 840, 176 Cal. Rptr. 874 (App. 1982).

7 176 Cal. Rptr. at 884.

8 Id. at 885. Accord, Pierburg GmbH & Co. KG v. Superior Court of Los Angeles County, 137 Cal. App. 3d 240, 186 Cal. Rptr. 876 (App. 1982).

9 No. 81 Civ. 4463 (S.D.N.Y. Jan. 24, 1983).

10 Id., slip op. at 11.

11 637 F.2d 775 (D.C. Cir. 1980).

12 528 F. Supp. 809 (E.D. Va. 1981).

13 Id. at 820 (footnotes omitted).

14 See the Agreements concluded with Canada, 28 UST 2463, TIAS No. 8567; Venezuela, 28 UST 5219, TIAS No. 8623; the Sudan, 28 UST 7482, TIAS No. 8723; Pakistan, 28 UST 7488, TIAS No. 8724; India, 28 UST 7497, TIAS No. 8726; and Nepal, 30 UST 2495, TIAS No. 9347.

15 See the Agreements concluded with Japan, 27 UST 946, TIAS No. 8233; Nigeria, 27 UST 1054, TIAS No. 8243; Colombia, 27 UST 1059, TIAS No. 8244; the Netherlands, 27 UST 1064, TIAS No. 8245; Spain, 27 UST 3409, TIAS No. 8370; Turkey, 27 UST 3419, TIAS No. 8371; Australia, 27 UST 3424, TIAS No. 8372; the Federal Republic of Germany, 27 UST 3429, TIAS No. 8373; Italy, 27 UST 3437, TIAS No. 8374; Iran, 28 UST 5205, TIAS No. 8621; Belgium, 27 UST 1966, TIAS No. 8292; and Greece, 27 UST 2006, TIAS No. 8300.

16 In connection with the General Tire & Rubber Co. and the Firestone Tire & Rubber Co. investigations, see the Agreement concluded with Mexico, 28 UST 2083, TIAS No. 8533; in connection with the Gulfstream American Corp. investigation, see the Agreement concluded with Togo, 30 UST 3477, TIAS No. 9401; in connection with the Jamaica Nutrition Holding Ltd. investigation, see the Agreement concluded with Jamaica, 30 UST 3868, TIAS No. 9430; in connection with the Westinghouse Electric Corp. investigation, see the Agreement concluded with Egypt, 30 UST 3996, TIAS No. 9441; and in connection with the McDonnell Douglas Corp. investigation, see the Agreement concluded with the Netherlands, 30 UST 2500, TIAS No. 9348.

17 See, e.g., Arts. 3 and 5 of the Agreements with Japan, note 15 supra, and Canada, note 14 supra.

18 See, e.g., Art. 2 of the Agreements with Japan and Canada.

19 See, e.g., Art. 7 of the Agreement with Japan and Art. 8 of the Agreement with Canada.

20 See, e.g., Art. 9 of the Agreement with Japan and Art. 10 of the Agreement with Canada.

21 See TIAS No. 9938.

22 Court of Appeal, May 13, 1982.

23 357 U.S. 197 (1958).

24 271 F.2d 616 (2d Cir. 1959).

25 See also Ings v. Ferguson, 282 F.2d 149 (2d Cir. 1960); In re Chase Manhattan Bank, 297 F.2d 611 (2d Cir. 1962); United States v. First Nat’l City Bank, 396 F.2d 897 (2d Cir. 1968); and Trade Dev. Bank v. Continental Ins. Co., 469 F.2d 35 (2d Cir. 1972).

26 644 F.2d 1326 (9th Cir. 1981).

27 See also Arthur Andersen & Co. v. Finesilver, 546 F.2d 338 (10th Cir. 1976); In re Uranium Antitrust Litigation, 480 F. Supp. 1138 (N.D. 111. 1979); and Commission v. Banca della Svizzera Italiana, 92 F.R.D. 111 (S.D.N.Y. 1981).

28 See Arts. 11 and 21 of the Convention, supra note 3.