SOCIETE NAT. IND. AERO. v. U.S. DIST. COURT
Legal provision: Treaty
Argument of John W. Ford
Chief Justice Rehnquist: We will hear arguments first this morning in No. 85-1695, Societe Nationale Industrielle, et cetera, versus United States District Court for the Southern District of Iowa.
Mr. Ford, you may proceed whenever you are ready.
Mr. Ford: Mr. Chief Justice, and may it please the Court, this case concerns The Hague Evidence Convention which establishes procedures for gathering evidence located on the soil of other signator nations.
The United States and the other Convention signators before the Court all agree the court below erred in holding the Convention does not apply here.
They all agree the decision of the Eighth Circuit should be vacated and the case remanded.
The major issue before the Court today is how to harmonize the Convention with the Federal Rules of Civil Procedure because both are the law of the United States.
As the amicus briefs show, the extent to which the Convention displaces U.S. discovery rules is a question on which the Convention signators hold divergent views.
To reconcile those differences and to effectuate the Convention's purpose, today we urge the Court to adopt a general rule requiring resort by American courts to The Hague Evidence Convention in the first instance.
The Convention preamble states its basic purpose of mutual judicial cooperation in civil or commercial matters.
Its history shows the Convention was adopted in large measure to avoid the friction created by the extraterritorial application of American discovery procedures as the new restatement of the law of foreign relations of the United States recognizes American attempts to conduct discovery abroad have been a major source of friction with our European trading partners.
In negotiation of the treaty the United States obtained significant concessions from the civil law nations on the basis that Convention procedures would be a substitute for the unsupervised extraterritorial use of American discovery rules, or as some writers have referred to it, legal tourism by American lawyers on the discovery trail.
At the bargaining table the civil law nations made clear they regarded such American discovery practices as invasive of their sovereign rights.
Ultimately, the civil law nations agreed to liberalize and simplify the process for obtaining evidence through their Courts for use abroad as the quid pro quo for lessening foreign intrusions of their sovereignty.
Unknown Speaker: Mr. Ford, may I just interrupt?
You say your position now is that they should resort to The Hague Convention in the first instance.
Is that the same position you took in the trial court?
Mr. Ford: Justice Stevens, it is to this extent.
In the trial court we urged first upon the Court exclusive use.
Unknown Speaker: Right.
Mr. Ford: Alternatively we argued--
Unknown Speaker: And are you abandoning the exclusive use position?
Mr. Ford: --We are not abandoning, Justice Stevens, the exclusive use position.
As a French national, my client supports the position of its home sovereign as stated in the amicus brief filed for the Republic of France.
However, as an independent entity, an independently managed entity, although albeit we are owned, our shares are owned by the government of France, we must face the practical results of litigating before United States courts, and recognizing the position taken by the Solicitor General, particularly after the opinion given to the Court in Falzon, Volkswagen versus Falzon, cited in the briefs, we today urge the Court for a general rule for American courts of first use.
Unknown Speaker: We are bound by The Hague Convention, are we not?
Mr. Ford: It is our position, Justice Marshall, that we are.
Unknown Speaker: Can't that be answered yes or no?
Mr. Ford: I beg your pardon?
Unknown Speaker: Can't that be answered yes or no?
Mr. Ford: It can, and the answer is yes.
Unknown Speaker: And so what else is there before us?
Mr. Ford: I believe what is before the Court is the opportunity to establish a general rule for American courts.
Unknown Speaker: 0 xxx.
Mr. Ford: To have resort to the Convention in the first use, on a first use basis.
Unknown Speaker: We are not resorting to it, we are bound by it.
Mr. Ford: I am sorry, I did not--
Unknown Speaker: We are not resorting to it.
We are bound by it.
The Constitution says that.
Mr. Ford: --I agree, Justice Marshall.
Unknown Speaker: I don't understand what the case is about.
Mr. Ford: I believe in the American courts the opinions below have a great deal of confusion.
A number of cases, without saying so, look upon the Convention in a particular case as somehow a conflict of law problem with foreign law, and as the Justice observed, it is not foreign law, it is the law of the United States.
Very few cases have, and we have cited them in the brief, addressed the problem of reconciling The Hague Evidence Convention with the Federal Rules of Civil Procedure.
Unknown Speaker: Mr. Ford, as I understand it, the Solicitor General doesn't agree that it has to always be resorted to in the first instance, does he?
how does your position now differ from that of the Solicitor General, would you say?
Mr. Ford: The present position of the Solicitor General as I understand it, Justice O'Connor, is, this case should be remanded for a case by case comity analysis.
Unknown Speaker: Which wouldn't necessarily require a resort to the Hague procedures in the first instance.
Mr. Ford: In our view a comity analysis certainly in this case and any similar case necessarily leads to that conclusion, but the rule proposed a change from the Solicitor General's earlier position in Volkswagen versus Falzon, where the Solicitor General of the United States amicus took the position the Convention was exclusive--
Unknown Speaker: Right.
Mr. Ford: --just a few years ago, now turns us to the suggestion the case be sent back for American courts in each case to have a factually laden, a factually burdened comity inquiry.
Unknown Speaker: And as I understand it it would not under his view, at least, require resort in the first instance to The Hague procedures--
Mr. Ford: That is--
Unknown Speaker: --necessarily.
Mr. Ford: --That is my understanding.
Unknown Speaker: Now, what is your position on who has the burden of proof to show what other procedures can accommodate a plaintiff's needs?
For example, does your client, being a foreign national, should your client have the burden of proof on what accommodation should be made, if any?
Mr. Ford: I do not believe so, Justice O'Connor, because it is not a fact question.
To the extent we have a factual inquiry, of course, of comity analysis it would rest with the party proposing it, but it is not a fact question.
I do not view it and submit it is not a conflict of law question.
It is part of the law of the forum, and for the application of the proper law of the forum no one has the burden of proof.
Unknown Speaker: Well, certainly the foreign national is going to know what the procedures are in that country better than the American litigant, presumably, and you don't think there should be any burden on the foreign national, at least, to go forward and establish what the procedures are which are available in the foreign country?
Mr. Ford: I do not, Justice O'Connor.
I think it is a logical assumption to be made but it does need further analysis.
I speak as one in that position, and I have no better information than respondent.
If I do, of course, I pass it immediately to him.
We share the same information.
There is, I submit, no proper warrant for placing a burden of proof concept upon a party urging the applicability of The Hague Evidence Convention outside of the comity analysis.
It is the law of the forum.
Unknown Speaker: Well, Mr. Ford, are you urging the applicability of The Hague Convention?
I admire your statesmanship in backing off from the position that it is exclusive and you must use it, but once you back off of that position, what is left other than the doctrine of comity?
But we didn't need The Hague Convention for the doctrine of comity.
That presumably existed before The Hague Convention was even entered into.
And I don't see why the obligation of a federal court to consider the sensitivities of foreign governments is increased a whit by the existence of The Hague Convention from what it was before that was adopted.
So how is the Hague Convention a part of your argument any more?
Mr. Ford: Well, Justice Scalia if I may point out, we are urging that this be a rule for all American courts.
As we see from the cases below state courts must deal with the problem as well.
Unknown Speaker: I understand, but what imposes that rule?
Where does that rule come from?
It doesn't come from The Hague Convention, if The Hague Convention is not exclusive.
Mr. Ford: It comes from a consideration of comity, which we have discussed in the brief.
Unknown Speaker: Right, which would have existed before The Hague Convention, right?
Mr. Ford: Yes, that is true, Justice Scalia.
Unknown Speaker: So we can just stop talking about The Hague Convention.
Mr. Ford: --Well, I would like to say--
Unknown Speaker: And all we are discussing is whether as a matter of comity American courts should generally not conduct discovery abroad, or not permit discovery to be conducted abroad.
Mr. Ford: --I should have made it clear in the first instance, a reading of the Convention itself and the Convention history supports prior to any resort to comity principles the proposition that The Hague Evidence Convention by an American court must be... must be used in the first instance.
Resort must be had in the first instance.
It is clear that any fair reading of the negotiations, the bargaining table--
Unknown Speaker: May I interrupt you?
Must be used?
Suppose a plaintiff serves you with an interrogatory, did you place this ad in this flying magazine, and you could answer it yes or no.
You say you can't answer that question without requiring resort to The Hague Convention?
Mr. Ford: --We do not, Justice Stevens.
Unknown Speaker: So it is not must in every sense.
It is something you could waive as a defense.
Mr. Ford: We have responded to all discovery against us.
Unknown Speaker: And you didn't violate any international treaties by doing that, did you?
Mr. Ford: Based on any and all information we could get in the United States.
It is not part of the Joint Appendix.
We did admit--
Unknown Speaker: I understand--
Mr. Ford: --to the genuineness of those advertising articles after, through U.S. sources.
Unknown Speaker: --And by doing so you acted consistently with the Convention, as I understand.
Mr. Ford: That is our position.
Unknown Speaker: Well, then, when must the Convention first be resorted to, just whenever the defendant, whenever the party opposing discovery requests that they do?
Mr. Ford: When we are unable within the United States to reach the evidence gathering process to respond, we or any other party, or, to put it another way, when the evidence must be gathered by whatever means on foreign soil of a signator, it is not the nationality, if the Court will permit, that controls, and there is where we find much confusion below.
It is the geographic location of the evidence, whatever the evidence may be.
Unknown Speaker: Even if the officer of the corporate defendant who is subject to the jurisdiction of the American court could write a letter that says please send me a copy of this document, it still means they have to go through The Hague Convention?
Mr. Ford: That is our position, because otherwise the divergent--
Unknown Speaker: Even if the officer is willing to do it?
Mr. Ford: --That is correct, because in the case of France we have the defensive legislation referred to in the cases as the blocking statute, a term we have adopted to avoid confusion, and in the case put to me by Justice--
Unknown Speaker: The statute, which, if I understand it correctly, you would not have needed if the Convention means what you say it means.
Mr. Ford: --We would not have needed--
Unknown Speaker: At least if the Convention is exclusive you wouldn't have needed that statute.
Mr. Ford: --Well, it isn't so much a question of our need as France's declaration of its own policy.
The statute is a criminal statute.
It is a declaration of the policy of France with respect to essentially growing out of its judicial control as a civil law nation of evidence gathering within its borders, as we know, of course, vastly different from common law countries and the American courts.
In the case of the corporate officer that the Court posed to me again it is the location of the evidence.
Of course the Court has jurisdiction over him, has the power, but the inquiry is whether or not it is a proper exercise of that power in ordering a foreign national over whom an American court has jurisdiction to gather evidence on the foreign soil of a signatory when it is the clear and unambiguous policy of that foreign country signatory that it and it alone controls evidence gathering on its soil and within its borders.
Unknown Speaker: Would this be true also of an American corporation with a French wholly owned subsidiary?
The American corporation could also say that the evidence that you request is in France and we insist that you follow the procedures?
Mr. Ford: If we have the situation where the evidence reposes on French soil and French soil alone and we are dealing with the The Hague Convention, again, it is the location of the evidence controls.
Unknown Speaker: Right, even if it is a wholly owned subsidiary, say, of General Motors or some company like that?
They could make the same objection, I suppose.
Mr. Ford: That is correct.
They are in the same position.
The first use rule, as I have recited, we believe, does reconcile the divergent viewpoints.
France regards the Convention as exclusive.
Unknown Speaker: I don't understand... if I understood your response to Justice O'Connor correctly, it isn't a first use rule.
Or if it is a first use rule it is substantially different from what the Solicitor General is proposing.
Mr. Ford: It is.
Unknown Speaker: Okay, so you think that you always must do it first, or generally must do it first?
Mr. Ford: Always.
Unknown Speaker: --Always?
Mr. Ford: Absent an absolute extreme situation where there has been a demonstrated record that this would be completely futile.
We find none of that in the courts below.
We find American courts speculating what a contracting national sovereign, a contracting state might or might not do.
There is the first folly.
That is for the contracting state.
And this... and it is in the record in this case.
Unknown Speaker: And this would be so even though it has become clear from the past experience of a particular federal court or of all the federal courts or state courts that a particular country, a particular signatory to the Convention in fact has not permitted these procedures to be used properly?
Mr. Ford: Or has returned--
Unknown Speaker: Right.
Mr. Ford: --letter after letter of request unexecuted.
We now have a developed record in that situation, Justice Scalia, and that is exactly what we are contending is the wisdom of the general rule.
The American courts have no reported experience with France or any of the other signatory nations, certainly with France--
Unknown Speaker: Right.
Are you going to answer my question, though?
Mr. Ford: --of dissatisfaction.
Unknown Speaker: Are you going to answer my question?
What if you do have such experience?
Does your first use rule still apply?
Mr. Ford: That is for the Court upon a record to create an exception to the general rule, so my answer would be--
Unknown Speaker: So it isn't absolute first use rule.
A court can use some factors to say--
Mr. Ford: --Of course.
I am sorry I... I was--
Unknown Speaker: --I am trying to understand what your position is.
Mr. Ford: --And I didn't quite make it clear.
The position is, for a general rule with the Court to carve out such exceptions as experience warrants, it is that experience that is currently lacking.
Unknown Speaker: And as experience warrants.
What other exceptions might there be besides the fact that we know that a particular foreign country won't in fact allow these procedures to be used properly?
Mr. Ford: Obviously where there are some exceptions or reservations taken that show incompatibility and collide with overriding national interests of the United States is one that occurs to me, but I say that only experience could determine this with a general rule in place from this Court.
Unknown Speaker: Mr. Ford, for example, haven't some countries party to the Convention made an Article 23 reservation so that, for example, documents will not be... requests for documents will not be honored.
Isn't that so?
Mr. Ford: They have, Justice O'Connor.
Unknown Speaker: And what is an American court to do when a party plaintiff, for example, is seeking production of documents that are in a country with an Article 23 reservation?
Mr. Ford: I suggest what the American courts have done is to have moved--
Unknown Speaker: I am asking under your proposal what is it the American court would have to do?
Mr. Ford: --It would have to make a first use of the Convention to test the meaning of the Article 23 reservation by the country.
Unknown Speaker: Well, suppose we know the meaning, and the country simply will not permit the production of documents.
Now, what is the court to do under your version?
Mr. Ford: Well, under the question as put, with the court knows, we know, if that knowledge is true knowledge and factually correct, the court is obviously faced with the option of carving out an exception.
If I may say, it is the presumption below of many courts that they knew when in fact we know from looking at the Convention history they didn't know.
There is a major misunderstanding of the Article 23 reservation of the civil law countries.
Unknown Speaker: What is the position of France today in honoring requests for documents that are relevant to the litigation in this country?
Mr. Ford: The position of France today is as expressed in the letter from the Minister of Justice to the Minister of Foreign Affairs in Appendix A to the amicus brief for the Republic of France.
And it is my understanding that the Minister of foreign Affairs has addressed The Hague conference as recommended in that letter, and we see in that letter an intent clearly expressed to honor direct nexus focused document requests, and it is--
Unknown Speaker: Are you aware of any such requests being made through American courts since that letter was issued?
Mr. Ford: --I am aware of none.
I understand the letter is... Justice O'Connor's question was today, and I understand the letter has just gone out or is just going out in furtherance of the interdepartmental memorandum, but the Convention, the Report of Convention Proceedings in 1985 shows the civil law countries do not have the same understanding that American courts think they do with respect to unfocused document requests on the one hand as opposed to pretrial discovery as known in the common law countries on the other.
There simply has not been sufficient experience.
Unknown Speaker: Well, suppose there is insufficient experience to show that these requests just aren't going to be honored, and you say, well, then the American court has... can recognize an exception.
What is it supposed to do when it recognizes the exception, order the party to produce the documents?
Mr. Ford: It must then make, with the benefit of a developed record, a comity analysis.
Unknown Speaker: All right, it makes it, and it says we need the documents.
May it order the party to--
Mr. Ford: First of all--
Unknown Speaker: --If it is against the law for the party to produce them--
Mr. Ford: --We suggest--
Unknown Speaker: --in the home state, in the home country.
Mr. Ford: --First of all, we suggest, Justice White, that orders should not become routine merely directing, it has to be a considered comity analysis.
Unknown Speaker: Could the court ever order the party to produce the documents if it is against the law, say, of France to produce them?
Mr. Ford: Yes.
Well, following, for example, the Interhandle case, or Societe Internationale versus Rogers, cited in the brief, we suggest that following the analysis the court would fashion an appropriate discovery order, a workaday item for any American trial court, and in fashioning that appropriate order it would not make dismissals or such similar types of sanctions become routine at all, if ever.
Indeed, in fashioning an appropriate order it would consider such options as evidentiary preclusion, the issue elimination, perhaps, other type of similar control over the evidentiary stream as the result of a limitation on the flow of pretrial information.
And of course therefore it is then for the party whose evidence is on foreign soil to consider in a genuinely voluntary basis the use of the Chapter 2 proceedings, and there is the other option that has been removed from any nationals, be they foreign nationals as my client or anyone else, where the evidence can be found only abroad.
Without that appropriate discovery order fashioned, Justice White, they cannot adequately consider what could be done under voluntary methods and considered in the proper light.
We ask here, of course, that respondent avail itself of the Convention as we have from the beginning.
They have not chosen to do so, which has brought us here.
The first use rule, we submit, as a general rule, with exceptions carved out as necessary, has every chance of working in practice and is exactly what is needed to develop an experience in this area within the American courts subject, of course, to review at appropriate stages by this Court.
I would like to reserve if I may any remaining time I have for rebuttal.
Argument of Jeffrey P. Minear
Chief Justice Rehnquist: Thank you, Mr. Ford.
We will hear now from you, Mr. Minear.
Mr. Minear: Mr. Chief Justice, and may it please the Court, the United States agrees that the Court of Appeals erred in holding that The Hague Evidence Convention has no application in this case.
We do not agree, however, that this Court should adopt a general first use rule in using the Convention.
Instead, the determination whether to use the Convention should be made on a case by case basis.
The judgment below should therefore be vacated and the case remanded for further proceedings.
Unknown Speaker: Now, Mr. Minear, the SG appears to have changed his position regarding the use of The Hague Convention.
Mr. Minear: Your Honor, we don't believe that that is really accurate.
The first case in which this issue arose--
Unknown Speaker: Well, I reread the briefs filed by the SG, and it certainly appears that way to me.
Mr. Minear: --You are referring to the brief that we filed in Falzon.
Unknown Speaker: Yes.
Mr. Minear: Falzon dealt with the problem of oral depositions on foreign soil.
The United States adheres to the position that those depositions are improper without the consent of the foreign nation.
However, this matter concerns strictly the production of documents and interrogatories, and in that case--
Unknown Speaker: Now, as to the taking of depositions do you adhere to the position that The Hague Convention procedures are exclusive?
Mr. Minear: --No.
No, we do not, Your Honor.
There is a statement on Page 6 of the Falzon brief that mentioned exclusivity, which said strictly within the confines of depositions on foreign soil.
We still believe that depositions could be taken in the United States without violation of a nation's judicial sovereignty.
Unknown Speaker: But not in France, for example, in this case.
Mr. Minear: Yes, that is correct, Your Honor.
Unknown Speaker: By reason of The Hague Convention, or by reason of some other principle?
Mr. Minear: By reason of what we believe is customary international law that the general view of foreign nations is that this would be a violation of their sovereignty, and the United States is willing to honor that viewpoint even though we might not necessarily agree with it fully.
Unknown Speaker: It would have nothing to do with The Hague Convention.
Mr. Minear: No, that would be quite apart from The Hague Convention.
Unknown Speaker: Why does your current position have anything to do with The Hague Convention?
Mr. Minear: The problem here, Your honor--
Unknown Speaker: I mean, either The Hague Convention is mandatory, in which case you use it, or it is not mandatory, and all it does is supplement the procedures that countries have to make information available abroad, right?
Mr. Minear: --Your Honor, that--
Unknown Speaker: It is either one or the other, and if it is the latter, then I don't see why it creates a new rule of comity that didn't exist before.
It mainly alters the procedures in the civil law countries, right?
Mr. Minear: --Yes, that is right.
Unknown Speaker: So why didn't we use comity before with respect to England?
Are you aware of any federal court that felt compelled in a discovery matter to withhold action until use of the British internal procedures for obtaining the information was resorted to?
Mr. Minear: Prior to the formulation of The Hague Convention these issues typically arose in the case of depositions that were to take place on foreign soil.
In a number of cases American litigants simply went to the foreign country and attempted to take depositions, and this, in fact, was what the genesis for the Convention was.
Unknown Speaker: But weren't those third party depositions, for the cost part?
Mr. Minear: For the most part they were.
That is correct, Your honor.
Unknown Speaker: Well, Mr. Minear, does the fact that this country has entered into The Hague Convention now weigh in the comity balance?
Is it now a factor in the comity analysis?
Mr. Minear: --Your Honor, it weighs in in this way, that the foreign nations generally view The Hague Convention as exclusive.
The United States' view is that this supplements American procedures for obtaining evidence.
It does impose obligations on the United States in response to your question, Justice Scalia, particularly as a receiving state.
We now have to meet the minimum requirements for providing evidence to foreign countries, and they do likewise.
But with respect to the comity analysis the conflict right now exists in the fact that we view this as a supplemental matter and that parties in the United States can typically choose among the discovery methods they might use.
The respondents here are free to use the Convention if they wish under American laws but they are not mandated to do so.
This is where the conflict arises, and this is why there is a need for a comity type of analysis.
Unknown Speaker: How do you get a treaty and comity?
Treaty is the opposite of comity.
Treaty is, you must do you it.
Mr. Minear: Again, Justice Marshall, the things that we must do is, we must provide the evidence as specified when a foreign nation requests it.
Unknown Speaker: You must follow The Hague Convention, period.
Mr. Minear: Yes, but The Hague Convention says that requests for foreign--
Unknown Speaker: But I mean there is no comity involved.
Mr. Minear: --As a receiving state that is correct, Your Honor.
Unknown Speaker: The treaty, the Constitution says a treaty is it.
Mr. Minear: Yes, but it only provides a supplement--
Unknown Speaker: And it binds everybody, including us and the Department of Justice.
Mr. Minear: --Your Honor, yes, the treaty is mandatory insofar as we must provide evidence to foreign countries.
Now, a court adjudicating a transnational dispute is faced with a choice of employing The Hague Convention, using traditional American discovery methods, or a combination of both methods.
Petitioners contend that the Court must always choose the Convention, at least in the first instance, to obtain any foreign evidence.
Unknown Speaker: Well, that is a perfectly fair position, and even if comity wouldn't have required resorting to foreign mechanisms in the first instance, it is perfectly fair to argue that The Hague Convention does require it, no matter what comity would have said.
Mr. Minear: We disagree.
Unknown Speaker: I know.
Why do you?
Why do you say that The Hague Convention does not require first resort?
Mr. Minear: Our view is, first of all, there is nothing in the Convention that indicates a first use requirement, and there is nothing in the ratification history that indicates a first use requirement as well, but furthermore petitioner's rule rests on the assumption that The Hague Convention will always produce fair, effective, and efficient discovery, and that is a matter that is subject to considerable debate.
Unknown Speaker: Well, if it just requires first resort I am not so sure about that.
Mr. Minear: Your Honor, the problem here is a domestic plaintiff who is forced to go through first resort to the Convention may in fact encounter so many obstacles that he is forced to give up his lawsuit.
Unknown Speaker: What if Congress in so many words said, you will resort to The Hague Convention in federal cases and you will not do otherwise?
Mr. Minear: Then that would be controlling.
There would be no doubt that if Congress in fact made that declaration explicit--
Unknown Speaker: So we are just talking basically about how stringent the provisions of The Hague Convention are, you know, what impetus Congress gave or the executive gave to require some sort of use of it before you get to ordinary discovery proceedings.
Mr. Minear: --Yes, Your Honor, but the record here is rather unclear, quite frankly, on to what extent Congress expected these matters to be used even in the first instance.
Unknown Speaker: Well, if we construe, if we say that The Hague Convention does not require exclusive use or first resort, do we have to decide anything else?
Do we have to get into comity?
Or is the only issue here the effect of The Hague Convention?
Mr. Minear: We believe that the Court should identify those principles that should control the comity analysis.
For instance, we think it is important that a foreign nation identify the foreign interest, the reason why the use of The Hague Convention is necessary within its country.
We also believe the Court should stress--
Unknown Speaker: Are they supposed to do that in each case?
Is that your point?
Each case they should find out the foreign interest considerations that should affect the District Court's comity analysis?
Mr. Minear: --Yes, Your Honor, we believe that that is--
Unknown Speaker: But did they do that in this case?
Didn't they just take a position that there can be no discovery except pursuant to The Hague Convention?
They didn't put out any facts that say there is anything special about this lawsuit.
Mr. Minear: --Yes, Your Honor, but the statement that a foreign nation objects, and being able to point to specific policies of the foreign nation we believe will generally suffice to show that there is a legitimate foreign interest here.
Now, some foreign interests are entitled to greater weight or greater comity than perhaps other interests.
For instance, we believe that the Court could reasonably conclude that the privacy interests of a nation, for instance, trade secret laws require use of The Hague Convention.
Unknown Speaker: Yes, but don't they have to say in their motion to limit discovery, we have got a trade secret problem in this case that you have got to be sensitive about, and they didn't do that.
Mr. Minear: Well, yes, Your Honor, and this brings up another problem.
These issues are typically arising in the context of protective orders, and in fact there is a mechanism, the Federal Rules.
Unknown Speaker: But they didn't ask for anything except a 100 percent protective order here.
Mr. Minear: Yes, that is true, Your Honor.
Unknown Speaker: And even the District Judge said you must take the depositions in France.
He did that independently.
Mr. Minear: Yes.
Now, Your Honor, with respect to the record that should be created, we believe the petitioners do have an obligation of some sort to explain how their law works and whether or not the discovery could be obtained in this case.
Unknown Speaker: Do you think they made the kind of showing that requires reversal in this case?
Is the showing they made in this case enough to justify reversal under the government's position?
That is really what I am driving at.
Mr. Minear: Yes, Your Honor.
We believe that the case should be vacated and remanded for a fuller comity analysis.
We do not believe the record here is really adequate to conduct the sort of comity analysis that we are discussing.
Unknown Speaker: Who has the burden of supplementing the record?
Mr. Minear: In this case it is difficult to speak of burdens in this situation.
Unknown Speaker: Well, somebody has got to go forward before the judge first.
Mr. Minear: --We believe that the domestic litigant has an obligation to identify the types of discovery that it feels is necessary.
Unknown Speaker: Well, he has done that.
Mr. Minear: And in return petitioner should indicate or the foreign litigant should indicate whether or not this discovery could be obtained through the use of the Convention.
They are in the best position to provide that sort of information.
Unknown Speaker: So are you going to order somebody to violate the laws of France?
Mr. Minear: Your Honor, may I answer that question?
My time has expired.
Unknown Speaker: Go right ahead.
Mr. Minear: Yes.
Our view is that Societe Internationale v. Rogers controls that inquiry.
In some situations it may be appropriate for a District Court to order production even though it might violate a foreign law.
Unknown Speaker: And get a man arrested and convicted.
Mr. Minear: Well first of all, there is a real question whether or not these laws are in fact being applied to French citizens.
There is a question of whether--
Unknown Speaker: You and your court are not going to determine what the law of France is when they put him in jail.
France is going to decide that.
Mr. Minear: --Yes, Your honor.
Argument of Richard H. Doyle
Chief Justice Rehnquist: Thank you, Mr. Minear.
We will hear now from you, Mr. Doyle.
Mr. Doyle: Mr. Chief Justice, and say it please the Court, we respectfully request this Court to affirm the lower court's decision and allow the plaintiffs in this case, John and Rosa George and Dennis Jones, to proceed with their request of discovery under the Federal Rules of Civil Procedure as opposed to the procedures under The Hague Evidence Convention.
Unknown Speaker: Do you agree that the Eighth Circuit was in error?
Mr. Doyle: No, I do not, Your Honor.
Unknown Speaker: Well, your opponent said everybody agreed to that.
Mr. Doyle: We certainly agree with the result, Your Honor.
Where we differ with the parties and the amicus parties to this case is that The Hague Evidence Convention does not apply at all to the discovery requested in this case, that being interrogatories, requests for admissions, and requests for production, for the reason that the discovery requested in this case does not fall within the very terms of the Convention itself, that is, the taking of evidence abroad.
In this case the plaintiffs are not abroad taking evidence.
The evidence is produced in the United States.
Unknown Speaker: Yes, but they are requiring the documents to be brought from France.
Mr. Doyle: That is true, Your Honor.
Necessarily there will be preparatory acts performed in the country of France in order to comply with these discovery requests.
Unknown Speaker: Well, France believes that the Hague Convention covers the production of these documents.
Mr. Doyle: That is true, your Honor, and we disagree with their reading of the Convention.
That is a fundamental difference.
Unknown Speaker: Well, if we disagree with you on that the case has to go back, doesn't it, to see if there are some grounds for an exception?
Mr. Doyle: Your Honor, I believe that the magistrate in the District Court and the Eighth Circuit made the necessary analysis so that it is not necessary for this case to be remanded in order to perform that analysis again.
Unknown Speaker: Well, did the Court below agree with you that The Hague Convention just didn't reach these documents?
Mr. Doyle: That is true, Your Honor.
Unknown Speaker: Did they also say, even if it... even if it... even if it applies there is an exception?
Mr. Doyle: That is true.
That is true.
And our basic position is that The Hague Evidence Convention by its very terms does not apply to this particular discovery.
Unknown Speaker: I am really puzzled, because Article 3(g) of the Convention says in words
"The letter request shall specify the documents or other property, real or personal, to be inspected. "
Now, do you mean it doesn't apply because they are documents possessed by a party?
Or it just has no application to document production?
Mr. Doyle: No, The Hague Evidence Convention applies to document production, Your Honor.
As we view the Convention if the discovery takes place in the United States, in other words, if there are no adversaries, United States adversaries intruding upon French soil, that The Hague Convention does not apply.
Those provisions with regard to the production of documents would apply in the taking of a deposition upon French soil.
Unknown Speaker: Well, it may not apply in the sense that it mandates that the procedure be adopted, but is it not at least an optional procedure that you could have requested a letter of request and you could have asked the Court to follow The Hague Convention if you thought it would be advantageous?
Mr. Doyle: Your Honor, I don't think there is any question but that the plaintiffs in this case could have--
Unknown Speaker: You see, using the words "doesn't apply" is really kind of a confusing term.
When you use it you mean it does not mandate following the procedures, but conceivably it would apply in the sense that it is an optional alternative available to you.
What do you mean when you say it doesn't apply?
Mr. Doyle: --I think an American litigant always has that option--
Unknown Speaker: Okay.
Mr. Doyle: --of using The Hague Evidence Convention for the type discovery that we requested in this particular case.
Unknown Speaker: So when you say and maybe when the Court of Appeals said it doesn't apply, all they meant was, it is not exclusive.
Is that what you are saying?
Mr. Doyle: Well, there is no question but that The Hague Evidence Convention is not exclusive, Your Honor.
Unknown Speaker: Well, the government of France disagrees with you on that, so there is a question.
Well, there are common law countries who certainly think it is exclusive.
Isn't that so?
Mr. Doyle: That is true, Your Honor.
Unknown Speaker: And that is one of the issues we have to resolve.
Mr. Doyle: Yes, Your Honor.
The exclusivity issue has not been resolved by the signatories to the Convention, and in the 1985 special commission that they had the parties were in disagreement as to whether or not the Convention was exclusive.
Unknown Speaker: Now, even if the Court were... even if we were to decide it isn't exclusive, do you think that a trial court has no obligation to consider whether Convention procedures could be followed in obtaining the requested discovery?
Mr. Doyle: In this case, Your Honor, it is our position that the trial court indeed has no obligation to consider whether or not Hague Evidence Convention procedures should be applied.
Unknown Speaker: And why?
You don't think that the United States interests in getting information might be affected by international concerns to a degree that the Court should consider that question?
Mr. Doyle: There are two reasons why it should not apply in this case.
Number One, it is our position that we are not intruding upon French judicial sovereignty or French soil in the production of documents, answers to interrogatories, requests for admissions that are made, produced in the United States, and secondly--
Unknown Speaker: Well, if we disagree with the court below on that point and believe that if the document is presently on foreign soil and has to be taken from there to be produced here, and if we think that is something that would trigger The Hague Convention as a possible procedure to use, then must the trial court not think about these international concerns?
Mr. Doyle: --In this particular case, Your Honor, no.
Not in this case, for the reason that, one, the terms of the Convention itself is not exclusive.
In a reading of the history, particularly the history of the American adoption of the Convention, clearly shows that there was no intent by the United States to make the Convention exclusive.
Thirdly, the problem in this case is that France has adopted Article 23 where they state unequivocally that they will refuse to honor any letters of request for production of documents for pretrial discovery, as known in common law countries.
Unknown Speaker: But now we have the letter from the foreign minister indicating possible availability of the procedure, do we not?
Mr. Doyle: Your Honor, I have some difficulties with that letter.
Number One, that letter was generated six days before the French amicus brief was filed with this Court.
That position was not raised in the lower courts at any other time until six days before they filed their brief.
Secondly, that is an intergovernmental communication.
It is not the law of France.
It has not been adopted by the French legislature.
Article 23 indeed has.
Another problem with that letter, Your Honor, is, if France receives a favorable ruling from this Court, what is to prevent the Ministry of Justice in France from changing their position away from that letter?
Unknown Speaker: Do you know that it has to be adopted by the French legislature in order to be binding in France?
Mr. Doyle: No, I do not, Your Honor.
Unknown Speaker: Well, while you are speculating, what happens if this Court, a District Court here orders this man to go over there and get these documents, and France locks him up?
Mr. Doyle: Your Honor, our position is that if there is no intrusion by the adversary on French soil, that The Hague Evidence Convention does not apply.
Unknown Speaker: How could that help him over there?
How does that help him out of the jail?
Mr. Doyle: It is our position, Your Honor, and we conceded and agreed with the lower court--
Unknown Speaker: You just feel sorry for him?
Mr. Doyle: --We conceded that if activity by the adversary, the American adversary takes place on French soil, that The Hague Evidence Convention procedures should apply.
The example of the American lawyer going to France to obtain the requested documents we agree that conduct should be governed by The Hague Evidence Convention as The Hague Evidence Convention is the supreme law of this land, as are the Federal Rules, of course.
Unknown Speaker: What if the French lawyer goes to France representing the French company and he is subject to some sort of sanctions by the French government because he is attempting to comply with the District Court discovery order?
Mr. Doyle: The safety valve in that case is that the French litigant would inform the District Court that if we comply with this discovery order we are subject to criminal penalties.
At that point, I think the District Court has to make an analysis as to whether or not that is a valid argument, in other words, that in fact is going to have.
The French have adopted their blocking statute, which makes it a criminal penalty to release certain information.
The question is, and the question the District Court should look at is, can that blocking statute be waived, and we don't have any sufficient record in this case.
Unknown Speaker: Do you think the District Court can focus solely on the concerns of the litigants before it to get information pertinent to their lawsuit and ignore foreign policy considerations in making this sort of a determination?
Mr. Doyle: Your Honor, no.
In this case we submit that The Hague Evidence Convention is not applicable to the discovery requested.
The Court need go no further.
If the Court needs not go any further, of course, it doesn't have to make that analysis.
Unknown Speaker: When you say it is not applicable, you are saying, I take it, not that it would not be available if you chose to use it, but that by its terms it is not required to be used?
Mr. Doyle: Absolutely, Your Honor.
It is not required to be used in the circumstances of this case.
Unknown Speaker: What does The Hague Convention have to do with that?
Suppose France had a blocking statute and The Hague Convention didn't exist.
In that situation do you think the District Court would have no obligation to consider the situation it was putting the litigant in by compelling information to be handed over where perhaps some other means could be devised?
Mr. Doyle: Your Honor, the Court certainly has to take into consideration that statute.
Unknown Speaker: So the inapplicability of The Hague statute is really irrelevant.
Even if we accept your position that maybe a particular procedure in The Hague Convention was not usable, the District Court should still consider when it is dealing with a foreign litigant what kind of a situation its discovery order is putting him in, no?
Mr. Doyle: That's really a two-pronged test.
One, does The Hague Evidence Convention apply, and secondly, if it does not can we obtain the information without subjecting someone to the violation of French criminal law.
The Societe Internationale versus Rogers case, of course, dealt with that type of situation long before The Hague Evidence Convention came into being.
In that case, of course, the Court required the District Court to make a comity analysis to see whether or not in imposing sanctions for failure to make discovery, whether or not the foreign national had made a good faith effort to get around that blocking statute, in other words, to waive that blocking statute.
Unknown Speaker: So your argument about the applicability of The Hague Convention merely goes to the manner in which the comity decision should be made.
It doesn't go to whether you make any kind of a comity judgment.
Mr. Doyle: That's right.
Our position is that rather than make the comity analysis up front is that you make the comity analysis when the discovery procedure falls apart, and you cannot receive the discovery because of the blocking statute.
In other words, we need no comity analysis to determine whether or not The Hague Evidence Convention would be applicable in a particular case initially.
But when the Court gets down the road to determine whether or not sanctions should be imposed against a foreign national, then, of course, the comity analysis should be made to determine whether or not those sanctions are appropriate.
Unknown Speaker: Do you understand your opponents to say that if an American plaintiff wants to take the deposition of a French national and the French national is completely willing to have his deposition taken on French soil, that you have to go through some official authority have it done?
Mr. Doyle: I understand that that's what our opponent's position is, Your Honor, yes.
Unknown Speaker: And that it the defendants in this case had said, well, we are quite willing to furnish these documents, is it their position that The Hague Convention, wholly aside from the blocking statute, would prevent them from doing that?
Mr. Doyle: Our position is that The Hague Evidence Convention is not mandatory, and that, yes, a foreign national or a foreign country could provide less restrictive procedures.
Unknown Speaker: Yes, but could these defendants simply have produced the documents without complying with any... without regard to The Hague Convention?
Mr. Doyle: They certainly could do that, Your Honor.
Obviously, it is not our opponent's position that they could do that.
It is our position that they in fact could do that and should have done it.
Unknown Speaker: Yes, but your opponents say that the Hague Convention would forbid them from just voluntarily producing the documents?
Mr. Doyle: No, because The Hague Convention is not exclusive.
Unknown Speaker: Yes, all right.
Mr. Doyle: And is not mandatory.
Unknown Speaker: Well, presumably you could waive any procedures required by The Hague Convention voluntarily like any other procedures, can't you?
You can say, we are not going to have to go through a discovery motion.
I will produce this.
You can do that in this case like anything else.
Mr. Doyle: That is true, Your Honor.
Unknown Speaker: But if you voluntarily turn them over, you are in trouble with France.
Mr. Doyle: That is what our opponents say, Your Honor.
Unknown Speaker: Is that true?
Mr. Doyle: We have no personal experience, Your Honor.
Unknown Speaker: But as you read the statute or the treaty, and you turn them over voluntarily, wouldn't you be violating the treaty?
Mr. Doyle: You would be violating the blocking statute, Your honor, and not the treaty.
The blocking statute requires--
Unknown Speaker: That is what I meant to say.
I am sorry.
Yes, I meant to say you would be violating the blocking statute.
Mr. Doyle: --That is correct, Your honor.
Unknown Speaker: And you would be subject to jail.
Mr. Doyle: That is correct.
Possibility of a fine.
The record is not sufficient in this case--
Unknown Speaker: To some people like me a fine is just as bad as jail.
Mr. Doyle: --Me, too, Your Honor.
The record is not sufficient in this case to determine whether or not France in fact enforces that blocking statute.
Of course, the impetus behind that blocking statute was--
Unknown Speaker: One way to find out.
Mr. Doyle: --That is correct.
That is correct.
Unknown Speaker: Mr. Doyle--
Mr. Doyle: Yes, Your Honor.
Unknown Speaker: That would be one way to find out.
Did your client explore in this case whether the requested information, for example, about advertisements in the United States could have been obtained from sources outside France?
Mr. Doyle: Our client has not, Your Honor.
We have presumed that some of that evidence in fact was generated in the United States and in fact was in the United States.
Mr. Ford has indicated this morning that the information we were given in response to our discovery requests and documents indeed came from United States sources.
We don't know whether or not there is any additional information that could be obtained from United States sources in this particular case.
Unknown Speaker: Mr. Doyle, the District Court order, if I remember correctly, permitted you to take depositions only in France, but it did permit you to go ahead and take them.
Have you taken any depositions yet?
Mr. Doyle: No, we haven't.
We have not, Your Honor.
Your Honor, I believe the order in the District Court case said that we could take depositions in the United States, but that if we were to take depositions in France, that the provisions of The Hague Evidence Convention would apply.
Unknown Speaker: Who was your District Judge?
Mr. Doyle: It was Magistrate Ronald Longstaff, Your Honor.
Unknown Speaker: Well, that is why I asked, because I thought it was a magistrate's case, not a District Court's case.
Mr. Doyle: The case was submitted to the magistrate under Section 636, Your Honor, for submission.
The Hague Evidence Convention is not exclusive in any way.
One, the terms of the Convention?
don't indicate any--
Unknown Speaker: Mr. Doyle, the order says if discovery depositions are to be undertaken the court will require compliance with The Hague Convention.
It doesn't say undertaken in France.
That is why I thought they had to all be in France.
You say I misread the order.
Mr. Doyle: --Well, we read the order as saying, if we are to take depositions in France, The Hague Evidence Convention applies.
Unknown Speaker: That is not what it says.
Mr. Doyle: I is our position that the Federal Rules of Civil Procedure certainly allow us to--
Unknown Speaker: Oh, I see.
I see what you are saying.
Mr. Doyle: --to require parties--
Unknown Speaker: But you haven't taken any depositions in the United States either, then, have you?
Mr. Doyle: --No, we have not, Your Honor.
The total extent of discovery in this case is before this Court.
And we have proceeded no further.
And of course the reason for that, Your Honor, is that we are subjected to a stay which was entered originally by the District Court and then by the Eighth Circuit Court of Appeals, and we are still under a stay to this day, so even if be wanted to take additional depositions we could not, Your Honor.
The Hague Convention cannot be exclusive.
The results, if this Court finds it to be exclusive, particularly in view of France's adoption of Article 23 and the blocking statute, will have significant effects with regard to litigation and also the economy of this country.
If The Hague Evidence Convention is exclusive, as argued by some parties in this case, the Federal Rules of Civil Procedure necessarily would not apply, and that would include the sanction provisions.
This, we submit, would cause the creation of information havens, the example of General Motors using a subsidiary to house its documents in a foreign country, a signatory to The Hague Evidence Convention, with the adoption of an Article 23 and a blocking statute.
An American litigant would not be able to obtain those documents, and secondly, it may well create offshore immunity.
In other words, an America manufacturer may decide to manufacture his products in a foreign country so he is not subjected in a real sense to liability in this country because they can effectively thwart any meaningful discovery.
To thwart any meaningful discovery flies in the face of the fundamental principles of this country's judicial system.
Discovery is critical in these cases, and without it American litigants would have their hands tied and be unable to proceed meaningfully with their litigation against foreign nationals.
The Court may want to look at the fairness issue in this case.
It is totally unfair to allow a French nationalized company to be subject to the in personam jurisdiction of the United States court to be able to shield itself from pretrial discovery by use of The Hague Convention and the blocking statute, and on the other hand and at the same time have the availability of the Federal Rules of Civil Procedure, which are liberal in regard to their discovery positions, to be used offensively against a domestic litigant, and the domestic litigant not having an opportunity to use those same Federal Rules of Civil Procedure.
A totally unfair situation, and I think that when the United States adopted the Hague Convention there was no intent that such a result be reached.
Unknown Speaker: Well, even under your theory you can't get equality.
I mean, you acknowledge that you can't take depositions in France under the Federal Rules, right?
Mr. Doyle: That is true, Your Honor.
Unknown Speaker: So there is no way to get parity.
Mr. Doyle: That is true.
That is true.
If there is--
Unknown Speaker: Do you acknowledge that you couldn't compel an officer of your opposing party to appear in the United States and give his testimony?
Mr. Doyle: --Your Honor, this court, the United States court cannot compel an individual to transport himself from France to the United States.
Unknown Speaker: No, I am not talking about the individual.
You have got a corporate defendant.
You say you don't think you could serve notice to have them produce the president of the corporation if he has knowledge of the whole matter in the United States for testimony?
Mr. Doyle: Yes.
The United States Court certainly has that power.
The Court does not have the power to force that individual to physically come to the United States.
Unknown Speaker: Well, they can tell the corporation we will dismiss your... strike your answer if you don't show up, or something like that.
There are all sorts of sanctions--
Mr. Doyle: --And that is the remedy, Your Honor.
That is the remedy, are these sanctions available under the Federal Rules if they fail to--
Unknown Speaker: --Do you contend there is any difference at all between the power... just forgetting the Convention between the power of the Federal District Judge to order an officer of an American corporation... say his office is in New York... to testify in Iowa or California and an officer of a French corporation who does business in Iowa to testify in Iowa?
What is the difference?
Mr. Doyle: --The jurisdiction of the Court to force--
Unknown Speaker: Assume they've got jurisdiction over the corporation.
They transact business in Iowa, and they have an officer who is either in New York or Paris.
Is there a difference in the power of the District Judge to compel the officer to appear and testify?
Mr. Doyle: --No, there is not, Your Honor.
There is not.
Rebuttal of John W. Ford
Chief Justice Rehnquist: Thank you, Mr. Doyle.
Mr. Ford, you have two minutes remaining.
Mr. Ford: With respect to respondent's remarks regarding questions of the applicability of the French defensive legislation or blocking statute and the Solicitor General's representative's remarks, which I understood to be there was some question in that office whether or not the French law applies to French attorneys highlights one of the major points be are trying to make.
That is not a question to be second-guessed on this shore.
That is what has led all of the American courts into the chagmire again without a general rule.
That is France's prerogative as it is of any foreign sovereign nation to state its own philosophy.
Whether or not it reflects fines, imprisonment, or whatever, in declaring that philosophy it is for that sovereign, and as we know from the Schooner Exchange versus McFadden, cited in the briefs, it is not for the courts of this nation to perform any function with respect to that declaration of a foreign sovereign other than understanding what it is the foreign sovereign--
Unknown Speaker: Mr. Ford, as I understand the questions presented and the position you espouse here, it doesn't depend at all on a blocking statute.
You would make exactly the same argument if they repealed the blocking statute, that you must resort in the first instance to The Hague Convention.
Mr. Ford: --Oh, yes, Justice Stevens.
Unknown Speaker: And your questions presented don't mention the blocking statute, in your cert petition.
So I don't see how that affects the analysis of the issue you have asked us to decide, the blocking statute, because you would make the same argument if there were no blocking statute.
Mr. Ford: The same argument would be made for a general rule if there were no blocking statute.
Unknown Speaker: Correct.
Mr. Ford: The issue of the blocking statute comes into play only when we reach the comity analysis, Justice Stevens.
Unknown Speaker: If you reach it.
Mr. Ford: If indeed it is reached, and Article 23 also has its voluntary--
Chief Justice Rehnquist: Thank you, Mr. Ford.
The case is submitted.