The Hague Evidence Convention Revisited: Reflections on Its Role in U.S. Civil Procedure

Abstract

This article proposes a reworking of the basic terms of the Hague Evidence Convention. Under current law, U.S. courts typically do not employ the Convention's evidence-taking mechanisms when ordering discovery from either a litigant or a witness subject to the court's subpoena power. Instead, applying a comity analysis adopted in Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa,1 lower courts allow use of the direct discovery provisions of the Federal Rules of Civil Procedure. United States courts will usually require use of the Convention only when direct U.S. discovery is not available (as in the case of witnesses not subject to U.S. subpoena power). At the same time, foreign courts executing letters of request under the Convention generally will not provide U.S. litigants with assistance adequate for their purposes. Foreign courts usually regard U.S. discovery requests as impermissibly broad and, relying on their reservations under Article 23,2 refuse to execute such requests. When discovery is permitted, it often takes longer than U.S. litigants find acceptable. Both the United States and foreign nations are critical of this state of affairs. United States courts and litigants are saddled with what they describe as the awkward, unpredictable Aerospatiale comity analysis; they do not obtain useful assistance when resort to the Convention is required; and their judgments may not be enforceable abroad. At the same time, foreign nations resent unilateral U.S. discovery of materials located on their territory, which often violates local blocking statutes. A new compromise might be more satisfying. As part of this compromise, foreign states would replace their Article 23 reservations with undertakings to execute letters of request for information that is material to a foreign litigation, subject only to specifically recognized foreign privileges. This