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When an Opposing Counsel Refuses to Produce a Witness or Documents

Each lawyer in all probability has a definition for what they think about a Horrible, Horrible, No Good, Very Dangerous Opposing Counsel. But at Legal Language Providers (LLS), we are constantly confronted with one particular sort of opposing counsel.

Sometimes, an lawyer will name LLS for recommendation on how to take the deposition of an officer of the defendant company, who’s situated overseas.[1] Such attorneys symbolize each plaintiffs and defendants. In one other variation of this call, a defense lawyer needs to understand how to get hold of paperwork from an abroad healthcare provider who treated a plaintiff who’s alleging that they suffered hurt due to medical malpractice or a merchandise liability damage.  In both instances, the evidence sought is within the custody, control, or place of a celebration to the litigation – and never a third-party to the litigation.

But all of those calls are triggered by the identical event: an opposing counsel is refusing to produce the defendant or cooperate with document production requests. The logic behind the opposing counsel’s position goes something like this: Because the witness is abroad, proof have to be taken pursuant to the Hague Proof Convention (HEC) or a Letter Rogatory.

How Do You Cope with a Troublesome Opposing Counsel?

The reply is Aérospatiale,[2] whose rules at the moment are reflected in Sections 441 and 442 of the Restatement [(Third) of Foreign Relations Law (1987)]. [3]

Aérospatiale concerned the crash in Iowa of a French-manufactured aircraft. When the plaintiff sought to take evidence in France beneath the Federal Rules of Civil Process, the French producer raised two objections:

(1) since both america and France have been members of the Hague Proof Convention, the Convention defined the procedures by which American plaintiffs have been to take proof in France; and

(2) the French blocking statute[4] forbade the taking of evidence requested by the plaintiffs

Accordingly, the defendant manufacturer’s position was that the plaintiff was not entitled to take evidence in France.

Overcoming the HEC Objection

The Aérospatiale Courtroom simply disposed of the primary of the manufacturer’s objections. Nothing within the Hague Proof Convention limits the facility of authority of the requesting nation’s courts. To the contrary, the Courtroom took discover of Article 27 of the Hague Proof Conference which explicitly offers that:

(a) declaring that Letters of Request could also be transmitted to its judicial authorities via channels aside from these offered for in Article 2;

(b) permitting, by inner regulation or follow, any act offered for in this Convention to be carried out upon much less restrictive circumstances;

(c) allowing, by inner regulation or apply, methods of taking proof aside from those offered for in this Convention.

The Courtroom went on to rule that the Hague Proof Convention was not the popular process for taking proof, however quite it must be thought-about an various to the Federal Rules of Civil Procedure for taking proof abroad.

Overcoming the Blocking Statute Objection

The Aérospatiale Courtroom subsequent addressed the difficulty of the blocking statute. The Courtroom acknowledged that the blocking statute was a valid legislative act of a sovereign authorities and thus a comity analysis was applicable.

Based mostly on prior case regulation in regards to the taking of proof abroad, the Courtroom identified five elements to be utilized in a comity evaluation earlier than a overseas country’s legal guidelines have been enforced to deny a US get together’s proper to have entry to abroad evidence.

These elements are:

(1) the importance of the evidence sought to the investigation

(2) the degree to which the requested proof has been particularly recognized

(3) whether or not the proof sought originated in the USA

(four) the supply of other strategies for securing the evidence

(5) the extent to which noncompliance with the invention request “would undermine important interests of the United States, or compliance with the request would undermine important interests of the State where the information is located”

When granting the plaintiff’s movement for discovery in France, the Courtroom noticed that the blocking statute was just one non-dispositive factor for a courtroom to think about in its comity analysis.

Of the five Aérospatiale elements, the first three are case-specific, so further discussion of those elements is beyond the scope of this publish. Nevertheless, a number of instances have examined the fourth issue, the power of other methods (e.g., the Hague Evidence Convention), to secure evidence overseas to be used in US litigation.

Various Strategies for Securing Evidence

When evaluating the Hague Evidence Conference to the Federal Rules of Civil Process for taking evidence overseas, a cost-benefit evaluation is applied. Implicit on this cost-benefit evaluation is consideration of the potential most worth of the proof to be obtained. The standard consequence of such analysis is to conclude that the taking of evidence beneath the Hague Proof Convention is more time-consuming and costly than underneath the Federal Guidelines of Civil Procedure.[5]

Because of this, US courts have taken the view that just because the Hague Proof Conference is “an alternative method [to the Federal Rules of Civil Procedure] for obtaining the documents, it is not proof that [this method] is necessarily an effective, or efficient, method for doing so in this case.”[6]

Courts have even justified using the Federal Guidelines of Civil Procedure in taking jurisdictional discovery proof because it was a more time- and dollar-efficient technique to take proof abroad.[7] The good effectivity of taking evidence underneath the Federal Guidelines of Civil Procedure is the rationale why many courts contemplate “the burden of persuasion as to the optional use of the Convention procedures” to be with the proponent for the Hague Evidence Conference.[8]

Overseas Blocking Statutes Right now

Within the 30 years since Aérospatiale was decided, the power of a overseas blocking statute to frustrate discovery has been extensively litigated. Particularly, many overseas defendants have filed motions to have evidence taken overseas underneath the Hague Evidence Convention relatively than the Federal Rules of Civil Process in order that they achieve the good thing about a blocking statute.[9]

Nevertheless, Beneath F.R.Civ.P. 26(c), defendants who seek a protective order based mostly on the potential penalties of a blocking statute bear the burden of proof to present good trigger for such an order.[10] Certainly, the burden is on the overseas litigant to reveal that the overseas regulation “actually bars the production.”[11]

For example, in a case the place a German defendant declined to produce paperwork due to the German Blocking Statute’s penalties, the courtroom ordered the documents produced as a result of the defendant had failed to present he truly confronted German Blocking Statute liability.[12] Nevertheless, a courtroom’s capability to reduce the impression of blocking statutes on American litigants is just not unlimited.[13]

Given the German Blocking Statute’s potential penalties to German defendants who violate the Federal Knowledge Protection Act (BDSG), the Xarelto courtroom was hesitant to apply the Aérospatiale’s five-factor analysis to waive away the enforcement of the BDSG. The Xarelto courtroom recognized that the BDSG was broad sufficient to render even the in digital camera assessment of the defendant’s knowledge to be a violation of German regulation.

Still, the courtroom ordered the production of a privilege log as a preliminary step to ordering doc production.

The Bottom Line

Aérospatiale stands for the next rules

  • The HEC and Blocking Statutes are just two elements to be thought-about by a US discussion board courtroom listening to a movement to compel the production of evidence
  • US courts acknowledge that it is often extra environment friendly (in each money and time) to take evidence from an abroad party-witness pursuant to the courtroom’s own rules than to take the same proof pursuant to the HEC [14]

So what do you do the subsequent time an opposing counsel refuses to produce an abroad party-witness(es) or documents of their possession, custody or management;[15] i.e. when the evidence sought is controlled by a get together to the litigation?

File an Aérospatiale movement to compel manufacturing of the proof. If the opposing counsel stays recalcitrant, there’s a good probability they may seem unreasonable before the discussion board courtroom. For good measure, ask that the opposing counsel cover the expense of obtaining the evidence beneath the HEC as a result of they might have freely produced, or produced at little or no value, the requested proof.

When you require assistance accumulating evidence overseas, contact the professionals at Authorized Language at this time.

Converse with a consultant at this time!

Notes
[1] F.R.Civ.P. 30; Alcan Intern. v. S.A. Day Mfg., 176 F.R.D. 75, 78 (W.D.N.Y. 1996) (Rule 30 applies even when the deponent is situated overseas); cf. Certain nations, e.g., Germany, have declarations and reservations of the HEC that compel using the Hague Proof Convention when evidence is to be taken from their citizens. See https://www.hcch.net/en/instruments/conventions/status-table/?cid=82.
[2] Aérospatiale v. US District Courtroom for the Southern District of Iowa, 482 U.S. 522 (1987).
[3] In re Activision Blizzard, 86 A. 3d 531, 541 (Del 2014).
[4] Blocking statutes are legal guidelines that prohibit the forms of assistance that can be offered to a overseas tribunal.
[5] Benton Graphics v Uddeholm, 118 FRD 386 (DC NJ 1987).
[6] In re Air Cargo Delivery Servs. Antitrust Litig., 2010 WL 2976220, at *2 (E.D.N.Y. July 23, 2010).
[7] In re Vitamins Antitrust Litigation, 120 F. Supp. second 45, 54-55 (DC 2000).
[8] In Re Automotive Refinishing Paint Antitrust, 358 F. 3d 288, 305 (3rd Circuit 2004); cf. Hudson v Hermann Pfauter GmbH, 117 FRD 33 (ND NY 1987) (get together opposing using the Hague Evidence Conference has the burden of proof for using the Federal Guidelines).
[9] Metso Minerals Industries v. Johnson Crushers Worldwide, Case No. 10-C-0951 (ED WI 2011); Richmark Corp. v. Timber Falling Consultants, 959 F.second 1468 (1992).
[10] Autodesk v ZWCAD Software program, Case No. 5:14-cv-01409-EJD (NDCA 2015).
[11] Ex-Im Financial institution of U.S. v. Asia Pulp & Paper Co., No. CIV.A. 03-08554, (S.D.N.Y. Apr. 17, 2009); Trueposition v LM Ericsson Phone Company, No. 11-4574. (EDPA 2012) (similar); In re Air Crash at Taipei, 211 F.R.D. 374 (D.Cal. 2002).
[12] AccessData Corp. v. Alste Tech. GMBH, 2010 WL 318477 (D. Utah Jan. 21, 2010); see also Strauss v. Credit Lyonnais, 249 F.R.D. 429, 454-56 (E.D.N.Y. 2008) (blocking statute did not pose a sensible menace of prosecution towards a French company appearing in compliance with routine U.S. litigation requests).
[13] In In Re: Xarelto, MDL No. 2592 (ED LA Might 16, 2016).
[14] Aérospatiale and its progeny present no authority for the taking of proof type third-party overseas witnesses. Evidence from such third-party is all the time taken pursuant to the HEC or Letter Rogatory.
[15] FRCP 45.

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