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Recent Developments in the United States under The Hague Evidence Convention

Published online by Cambridge University Press:  21 July 2009

Edwin R. Alley  and
Darrell Prescott
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Abstract

In this article the author states that until now the lack of specific guidelines might explain the fact that the application of the Aerospatiale ruling has been far from uniform in American practice. Nevertheless, some issues that had been considered by Courts and Commentators before Aerospatiale have now been resolved.

Alley and Prescott claim that the Hague Evidence Convention has represented a very positive step in international legal cooperation between nations which employ considerably different legal procedures. The authors discus recent developments and hope that there will be a continuation of construe five building of the US. and other signatory states upon their past experiences in mutual cooperation.

Type
Leading Articles
Information
Leiden Journal of International Law , Volume 2 , Issue 1 , May 1989 , pp. 19 - 34
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1989

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References

1. 482 U.S., 107 S. Ct. 2542,96 L.Ed.2d 461 (1987) (hereinafter Aerospatiale).

2. Multilateral Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, March 18, 1970, T.I.A.S. No. 7444,23 U.S.T. 2555, reprinted in 28 U.S.C.A. 1781 (West Supp. 1985).

3. Suggestions for effective use of the Convention's procedures, and factors that might be presented to U.S. Courts that are deciding whether to apply the Convention, are discussed in detail in Prescott, D. and Alley, E., Effective Evidence-Taking Under the Hague Convention, 22 International Lawyer 939 (1988).Google Scholar

4. With respect to the foregoing discussion concerning Ait. 23, see Report on the Work of the Special Commission on the Operation of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, 171.L.M. 1425,1428 (1978); B. Oxman, The Choice Between Direct Discovery and Other Means of Obtaining Evidence Abroad: The Impact of the Hague Evidence Convention, 37 U. Miami Law Review 733,771-77 (1983); Prescott, D. and Alley, E., supra, note 3.Google Scholar

5. See in particular, F.R. Civ. Pro., Rules 26-34.

6. The ‘scope of discovery’ test is defined in F.R. Civ. Pro. 26 (b) (1), and is given generally rather than specifically, as follows: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action (…)”. Moreover, “[i]t is not ground for objection that the information sought will be inadm issable at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence”, Id..

7. See F.R. Civ. Pro. 30. This testimony may be used at trial under certain circumstances (for example, if the witness is not available to be present at trial, or if die witness is present but the deposition testimony contradicts his trial testimony). The Supreme Court stated in Hickman v. Taylor, 329 U.S. 495,500 (1947), that the “deposition-discovery mechanism (…) is one of the most significant innovations of the Federal Rules of Civil Procedure”.

8. see FJi.Civ.Pro.34.

9. See F.R. Civ. Pro. 33. Many practicing U.S. attorneys think that interrogatories, although they have certain limited uses, in most respects provide less satisfactory discovery than deposition testimony. The answers are written, probably have been prepared, at least to a large extent, by the other lawyer rather than the client, and often provide little or no opportunity to assess whether the person supplying the answers would be a persuasive witness in Court.

10. See Moore, J.. 4 Federal Practice, 26.02 [3]; see also 26.01 [29] (1984).Google Scholar

11. Hickman, v. Taylor, supra note 7, at 507; United States v. Proctor & Gamble Co., 356 U.S. 677, 682 (1958).Google Scholar

12. A liberal approach to pre-trial discovery has become well-established in the United States. When there is a close question whether a party is entitled to certain discovery, many judge will lean in favour of permitting it To be sure, there have been outcries over certain abuses of the discovery system, but most reform efforts seem aimed at correcting specific abuses (e.g. the 1983 amendments to Rules 11 and 26(g), F.R. Civ. Pro., which allow the imposition of sanctions, including attorneys fees, on attorneys and parties who engage in legal proceedings in bad faith or without proper justification) rather than at a radical overhaul of the entire system. Some of the abuses include delay, expense, and unnecessary duplication of effort One recently retired Supreme Court Justice has observed that the rules have “not infrequently (been) exploited to the disadvantage of justice”, Herbert, v. Lando, 441 U.S 153, 179 (Powell, J., concurring) (1979).Google Scholar

13. French Penal Code Law No. 80-538, Article 1-bis, which provides: “Subject to treaties or international agreements and applicable laws and regulations, it is prohibited for any party to request, seek or disclose, in writing, orally or otherwise, economic, commercial, industrial, financial or technical documents or information leading to the constitution of evidence with a view to foreign judicial or administrative proceedings or in connection therewith”; 107 S.Ct 2546 at note 6.

14. In re Societe Nationale Induslrielle Aerospatiale, 782 F.2d 120 (8th Cir. 1986).

15. E.g., Graco, Inc. v. Kremlin, Inc., 101 RR.D. 503 (N.D. 111. 1984).

16. 782 F.2d at 124–25.

17. Id. at 125–26.

18. 107 S.Ctat 2554.

19. See Hilton, v. Guyot, 159 U.S. 113 (1895).Google Scholar

20. 107 S.CL at 2556–57; emphasis added.

21. 107S.Ctat 2558.

22. 107 S.Ct. at 2557–58.

23. 107S.Ct at 2546.

24. 107 S.Ct at2557.

25. 117 F.R.D. 33 (N.D.N.Y. 1987).

26. id at 38.

27. id al 39.

28. Id..

29. 743 S.W. 2d 364 (Tex. App.- Houston [First District] 1988).

30. Id. at 366.

31. 676 S.W.2nd 443 (Tex. App. Houston [First District] 1984).

32. Id. at 365.

33. Id. at 366. Unfortunately, it appears that in some respects the result may have precisely the opposite effect, since the Supreme Court has opened the way for inconsistent interpretations of treaty obligations by the lower courts.

34. Id.

35. Supra, Par. 3.1.

36. Supra, note 24.

37. Civ. No. 86–4429 (E.Dla. May 20,1988 (Lexis, Genfed library, DisL file).

38. 121 F.R.D. 254 (M.D.N.C. 1988).

39. 838 F.2d 1362 (5th Cir. 1988).

40. Id. at 1364.

41. Id.. See also Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445,452 n.6 (6th Cir. 1988).

42. 118 F.R.D. 386 (D.N J. 1987).

43. 119 F.R.D. 335 (E.DXY. 1988).

44. 118F.R.D.at391.

45. Id.., (emphasis added).

46. 531 N.Y. Supp. 2d 188 (S.CL Monroe Co. 1988).

47. See, e.g., Collins, L., The Hague Evidence Convention and Discovery: A SeriousMisunderstanding?, 35 International and Comparative Law Quarterly 765 (1986).Google Scholar

48. See generally Prescott, D. and Alley, E., Effective Evidence-Taking Under the Hague Convention, supra, note 3.Google Scholar