Switzerland liberalizes its practice under Chapter 2 the Evidence Convention

Switzerland has just modified its declarations regarding the operation of Chapter 2 of the Evidence Convention in its territory. Chapter 2, as you’ll recall, is the part of the Convention that deals with the taking of evidence without compulsion, either by a diplomatic officer or consular agent (Articles 15 and 16) or by a commissioner (Article 17).

Until now, Swiss practice has been typical and somewhat opaque. Here is the prior version of the Swiss declarations:

In accordance with Article 35, Switzerland declares that evidence may be taken according to Articles 15, 16 and 17 subject to prior authorization by the Federal Justice and Police Department. A request for authorization must be addressed to the Central Authority in the canton where the evidence is to be taken.

The declaration provided that permission was required in all cases, and it said nothing about what the terms on which permission would or would not be granted or the procedure to be followed. This is quite typical of Chapter 2 practice.

Here is the new declaration:

There is much of interest here. First, the role of the commissioner is elaborated. He or she is responsible for compliance with the terms of the Convention and any special terms that the Swiss authorities may impose. He or she may take the evidence, or may merely supervise the taking of the evidence (which, I think, means administering the oath and ensuring that the lawyers or foreign judges who question the witnesses do not exceed the bounds of the permission granted).

Second, when the commissioner is abroad or when the witness is participating in a hearing taking place abroad, under Paragraph 3 of the new declaration, a person “staying in Switzerland” may be questioned without prior permission. This is, on its face, a significant liberalization. Its meaning is not perfectly clear, to me at least, because Paragraph 1 states that taking of evidence by commissioner “requires prior permission” from the Federal Office of Justice, but that “Paragraph 3 below applies notwithstanding.” I think but am not certain that this means that Paragraph 3 trumps Paragraph 1, but the wording is unusual; if I am right about the meaning, it would have been more natural to say, in Paragraph 3, that “Notwithstanding Paragraph 1, persons who are staying in Switzerland may be questioned or examined without prior permission …” But assuming that I am right about the meaning, this is a major step forward.

One twist is that Paragraph 3 only applies when the commissioner is “located abroad.” In states with very well-developed commissioner practice (I am looking at you, France), it is usual for the commissioner to be a French lawyer. But Paragraph 3 seems to rule out a Swiss lawyer as commissioner in practice, unless there is a Swiss lawyer residing abroad who wants to undertake that role. If we assume an American proceeding, then perhaps one or even both of the lawyers for the litigants could be appointed as commissioner. But then the advocates would also have responsibilities to ensure compliance with the Swiss government’s limitations, which does not seem ideal. Perhaps the US judge could act as commissioner, but I think it highly unlikely that a US judge would want to undertake that role, given the usual attitude of American judges towards the taking of evidence outside of court, which is that they do not want to be involved. (The new declarations do open up the possibility of a Swiss witness testifying remotely at a US trial, which under FRCP 43(a) can be permissible “for good cause in competing circumstances and with appropriate safeguards,” and in such a case I think a US judge appointing himself or herself as commissioner makes very good sense). A third possibility is that US lawyers who do not represent either party could undertake this work as a neutral subject to the ethical strictures of Rule 2.4 of the Rules of Professional Conduct (or whatever is the equivalent in the lawyer’s jurisdiction). If I may, I think I would be very well-suited to undertake this work and will find a way to make my availability known!

Another possible twist is that Paragraph 3 applies only to taking evidence from “persons who are staying in Switzerland.” That is an odd phrase. I do not know whether the Swiss government intends to limit the application of Paragraph 3 to persons who happen to be staying in Switzerland but who are not Swiss residents, or whether it means that anyone who is in Switzerland may be questioned under Paragraph 3. I suspect it is the former, and that the odd wording is just a consequence of Switzerland providing its declarations in English as well as in French. The French version reads: “Les personnes séjournant en Suisse.” My French is not good enough to know whether séjourner (as compared with the unambiguous visiter, or the neutral-sounding rester, or habiter, unambiguous in the other direction) invariably connotes a temporary stay, but I suspect it does, given the English connotation of sojourn. Question: can a Swiss national residing abroad be questioned without permission, even if he is only sojourning in Switzerland for a time?

Third, the new declaration emphasizes what has always been the case: the witness’s participation must be voluntary, and the Swiss law on secrecy obligations continues to apply. In practice, a Swiss witness who refuses to answer a question on the grounds that an answer would violate Swiss law cannot be compelled to answer the question in a Chapter 2 examination, and a litigant wanting to press the issue would likely have to proceed instead under Chapter 1, so that a Swiss court would be in a position to decide whether the witness must answer the question.

Finally, the Swiss have shown interest in the HCCH’s efforts to promote electronic transmissions of requests under the Convention and have made it clear that requests may be submitted electronically. This is all to the good.

Section 1783 Case of the Day: Eletson Holdings v. Levona Holdings

The case of the day is Eletson Holdings Inc. v. Levona Holdings Ltd. (S.D.N.Y. 2025). Eletson sought confirmation of an arbitral award. Levona sought to have the award set aside, on the grounds that, according to Levona, documents Eletson had not produced in the arbitration but had produced in a later bankruptcy proceeding showed that Eletson had offered fraudulent testimony in the arbitration. Intervenors in the case sought leave under 28 U.S.C. § 1783 to serve a subpoena on Peter Kanelos, a US citizen or resident who was in Greece, who was a participant in the communications that had been produced in the bankruptcy.

Section 1783 is (at least in my experience) rarely used. The statute provides:

A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner.

The first question I ask lawyers who call me for help obtaining evidence abroad is: is the target a US national or resident?1 Usually the answer is no. Sometimes it is yes, and then we have to consider whether it makes sense to use the statute. The answer is usually “no,” because many US nationals live abroad and do not return to the US regularly. In such cases, the subpoena (which the US court cannot enforce abroad) carries little oomph, and it is not practical or cost-effective to try to monitor the witness’s travel for purposes of bringing contempt proceedings. I say the answer is usually “no.” In fact, I do not think I have ever seen a case where I recommended using the statue. But as today’s case shows, sometimes people try.

The statute has three requirements. First, the witness has to be a US national or resident. Second, the subpoena has to be necessary in the interests of justice (this is traditional language from traditional letters rogatory). Third, there must be no other way to obtain the evidence in a form admissible at trial.2

The judge reviewed the sparse precedent on the statute. “Necessary in the interests of justice,” he wrote, is a squishy analysis that looks at the totality of the circumstances. He held that the evidence was necessary in the interests of justice, for reasons that I am not going to focus on here. The key, though, was whether the intervenors had shown that there was no other way to obtain the evidence. The problem is that Greece is a party to the Evidence Convention. On this point, the intervenors say that pursuing that route would take longer than the case schedule permits. I question whether proceedings under § 1783 would, in practice, lead to obtaining the evidence any quicker. But the intervenors had sought to issue other letters of request under the Convention in the case, which the judge thought undercut their argument. The judge also pointed out that the intervenors had not shown any efforts to obtain Kanelos’s evidence without compulsion, either in Greece or elsewhere. Note that Greece has not objected to the non-compulsory methods of Chapter 2 of the Convention (for our purposes, notably, depositions by a commissioner and consular depositions). To the contrary, Greece has declared, under Article 18, that commissioners etc. can apply for compulsory aid under Greek law.

Let me add one procedural wrinkle about § 1783. The statute requires that the subpoena be served under FRCP 4, and the Service Convention requires that it be served by a method authorized or permitted under the Convention (because the subpoena is a judicial document). Greece does not permit service by alternate means under the Convention, and so even if FRCP 4 permits service by post in the circumstances, the intervenors would have to request that the Greek central authority serve the subpoena. Again, I question whether any of this is faster than making a request under the Evidence Convention.

#Greece #HagueEvidenceConvention #HagueServiceConvention #subpoena

Do the Intel factors apply to a letter of request under the Evidence Convention?

The case of the day is In re Request for Judicial Assistance from the National Civil Court of First Instance No. 42 in Caba (N.D. Cal. 2024). Dario Hernan Raris brought a lawsuit in Argentina against Property Owners Association Uruguay 292, seeking damages caused by a water leak. The defendant allegedly had traded products on eBay, and the Argentine court sent a letter rogatory asking the US court to gather evidence from eBay for use in the Argentine case.

The case is, in a sense, routine. The US central authority did what it does in such cases and arranged for the Department of Justice to file an application under Section 1782 for leave to serve a subpoena on eBay. The court granted the motion, appointed the assistant US attorney as commissioner, and authorized service of the subpoena. Its decision runs through the Intel factors and concludes that the discretionary factors favor discovery.

That’s fine, but I want to ask why American courts think they have discretion in a case where a foreign court, in a state that is party to the Evidence Convention, requests aid under the Convention. After all, under Article 12 of the Convention, execution of a letter that meets the requirements of the Convention can be refused only if “in the State of execution the execution of the Letter does not fall within the functions of the judiciary,” or if “the State addressed considers that its sovereignty or security would be prejudiced thereby.”

Maybe you will point to Article 9. But that article only provides that the court “shall apply its own law as to the methods and procedures to be followed.” Whether to grant judicial assistance is not a question about methods and procedures. Maybe you will point to Article 10. That article provides that the court should decide on measures of compulsion under its own law. But it specifies that the court should look to the internal law that would apply to “requests made by parties in internal proceedings.” That means looking at FRCP 45, the rule that governs subpoenas in domestic cases, but not looking at Section 1782, which applies only to cross-border proceedings, not to internal proceedings.

For these reasons, I think it’s a mistake for courts to do an Intel analysis when the government seeks leave to issue a subpoena in response to a letter of request from a Convention state.

In practice, I don’t think this will make much difference to outcomes. When a foreign court sends a letter of request, then almost by definition the receptivity and non-circumvention factors in the Intel analysis will favor the 1782 application. The undue burden factor may or may not favor the application, but even in a domestic case governed only by FRCP 45, a court can quash a subpoena that is unduly burdensome.1There is a procedural difference here: under Intel, a court can deny an ex parte application outright if the subpoena is unduly burdensome, while under FRCP 45, the burden is on the party that received the subpoena to argue undue burden. The only remaining Intel factor is the factor that asks whether the target of the discovery is a party to the foreign case. The gist of that factor is to ask whether the foreign court could simply order the target to provide the evidence, and if it could, then it’s pretty unlikely that the court would issue a letter of request in the first place.

Ordinarily I advise foreign litigants to bring a Section 1782 application rather than seeking evidence in the United States via the Evidence Convention. But the possibility that courts would agree with me that they lack jurisdiction to deny a Section 1782 application that meets the requirements of the statute in an Evidence Convention case is the one reason I know of (aside from cost) that it might make sense in a particular case to proceed by way of a letter of request. There would need to be some reason to think that a US court would exercise its discretion to deny the discovery (recall that Intel does not fully measure a court’s discretion).

• 1 There is a procedural difference here: under Intel, a court can deny an ex parte application outright if the subpoena is unduly burdensome, while under FRCP 45, the burden is on the party that received the subpoena to argue undue burden.

#1782 #Argentina #HagueEvidenceConvention

Case of the Day: Sillam v. Labaton Sucharow

The case of the day is Sillam v. Labaton Sucharow LLP (S.D.N.Y. 2024). Sillam was a French businessman. According to his complaint, he and Descroubres, who was predecessor in interest to Sillam’s fellow plaintiff, Saulnier, had a fee-splitting agreement with Labaton Sucharow. Sillam was to get 15% of Labanon’s earnings from clients that Sillam referred to the firm. Descroubres and then Saulnier were French lawyers who acted as intermediaries, receiving payment from Labaton and forwarding it to Sillam. Sillam claimed that the purpose of this complication was to avoid the ethical rule against splitting fees with “non-lawyers” (a ridiculous word, but I suppose the right one here).

Over the course of the deal, there was a lawsuit among the parties in France, which led to a settlement under which Labaton had to make sworn written statements for a period of five years about whether the firm had done any work for any client covered by the settlement. The idea was to allow Sillam and Saulnier to determine if they were owed money. A lawyer, Keller, provided affidavits for each year stating that Labaton had not done represented the relevant clients. Sillam’s complaint alleged that those affidavits were false.

After the five years ended, Labaton and Sillam entered into a final settlement agreement, under which the parties exchanged releases and Labaton paid Sillam the odd sum of $99,999. Sillam and Saulnier argued in their new lawsuit that if they had known that the affidavits were false, they would not have entered into the final settlement agreement. The court denied Labaton’s motion to dismiss the complaint, which alleged fraudulent inducement, and the case moved into discovery.

Labaton noticed Sillam’s and Saulnier’s depositions, which were to be taken in New York. Sillam and Saulnier moved for a protective order requiring the depositions to be taken in France on the grounds that they were “elderly” and “reluctant to travel out of fear of infection with COVID-19” in 2022 and 2023. The magistrate judge granted their motion, though the judge in today’s decision made it clear he thought that decision was wrong:

If this application had been made to me, I would have ordered Plaintiffs to show up in New York for their depositions or risk dismissal of the lawsuit they chose to bring here. When one avails himself of the jurisdiction of an American court, there is absolutely no excuse for not showing up in the United States for discovery governed solely by our rules, which – like it or not – are considerably more liberal than those in European countries, or when taken pursuant to the Hague [Evidence] Convention.

The magistrate judge’s order was contingent on Sillam and Saulnier signing declaration promising not to “file or pursue any type of legal proceeding in France, including but not limited to any type of criminal proceeding or criminal complaint, against Defendants, Defendants’ counsel, or any persons affiliated with them, relating directly or indirectly to the conduct of the deposition or this action.” I assume the reason the magistrate judge imposed this condition was that Sillam had already “commenced at least four civil and criminal proceedings in France, against Labaton, Keller, Sucharow, other Labaton partners, and the lawyers who have represented them in the United States and in France,” which were duplicative of the US lawsuit, which the French courts or prosecutors had dismissed, and which, in one case, had led to a € 115,000 sanction.

Immediately prior to his deposition, Sillam brought two criminal actions against Labaton and its American and French lawyers in France, alleging “violation of privilege, possession of stolen goods and defamation.” The French prosecutor dismissed the case, but Sillam refiled it. The apparent excuse was that Sillam’s lawyer advised him that the word or, in “relating to their depositions or this lawsuit,” meant in.

The magistrate judge ordered Sillam to show cause why he should not be sanctioned and then imposed sanctions of $146,280 and held that the justification offered was “frivolous.” The judge affirmed that decision and ordered that no further discovery should be taken in France.

Sillam then failed to pay the sanction by the time ordered. He had not sought relief from the order on the grounds that he lacked the ability to pay, nor had he objected to the magistrate judge’s order within time time permitted for an objection. Sillam had appealed the magistrate judge’s order directly to the second Circuit, but that appeal seems jurisdictionally doomed, as no appeal lies from a non-dispositive order of a magistrate judge. Nor had Sillam sought a stay.

The judge concluded that dismissal of the action was “certainly deserved,” but she decided to give Sillam “one more chance—but only to pay the sanction in full, not to protest it or to plead that he is unable to pay it (the time for making those arguments, and supporting them with evidence, is past).” She specified in minute detail the date and time and manner by which the payment had to be received, and she held that if Labaton’s lawyer apprises the court one minute after the deadline “that the money—every penny of it—is not in hand,” then the case would be dismissed with prejudice.

It’s hard to know what to make of a case like this, except to say that it would have been better if the magistrate judge had required the plaintiffs, who sued in New York, to travel to New York to testify at depositions.

#France #HagueEvidenceConvention

The case of the day is Skillz Platform, Inc. v. Papaya Gaming, Ltd. (SDNY 2024). I’ve written a lot recently about the use of the Evidence Convention to take discovery from non-parties, so I thought I’d write about a case involving discovery from a party, where it’s 100% correct to look at the Aérospatiale analysis.

Skillz and Papaya are both online gaming platforms. Papaya is an Israeli firm. Skillz sued for false advertising and deceptive trade practices. The claim was that Papaya told customers that they could play games against other people when in fact they were playing against robots. What a world we live in.

Skillz served requests for production of documents on Papaya, seeking documents relating to Papaya’s alleged use of bots and relating to damages. Papaya objected to some of the requests on the grounds that Israeli data protection law forbade it from producing the documents without an Israeli court order, or in other words, without using the Evidence Convention. The parties were able to narrow the dispute, with Papaya agreeing to produce anonymized log data relating to the use of bots and data regarding customers. But it still objected to producing internal communications an emails. Those communications are stored on Google servers in the European Union.

The court began by considering what Israeli law actually had to say. It considered declarations from Israeli law experts for both parties and found that the law did not forbid Papaya from producing the documents. The data pertained to a corporation, not to natural persons, a protective order was in place, and in any case the law allows for production of data necessary to litigate the claim in the US.

There’s no real reason to do the whole Aérospatiale analysis if there is no real argument that complying with the discovery request would cause Papaya to violate Israeli law. Nevertheless, the court went through the factors. Perhaps the most important factor weighing in Skillz’s favor was the risk that the Israeli courts would take a long time to execute a letter of request and that they would not allow a broad scope of discovery.

Image credit: Franz Eugen Köhler (public domain)

https://lettersblogatory.com/2024/10/13/case-of-the-day-skillz-platform-v-papaya-gaming/

#HagueEvidenceConvention #Israel

The case of the day is South32 Chile Copper Holdings Pty Ltd v. Sumitomo Metal Mining Co. (N.Y. Sup. Ct. 2024). The case was for breach of contract; it had to do with “profits realized from operations at a Chilean gold mine.” South32 sought issuance of letters of request to three tax and financial advisory firms in the UK and the Netherlands under the Evidence Convention. The judge granted the motion, which was unopposed.

The case is a textbook example of one of the mistakes I’ve been harping on. It cites the Restatement and New York precedents, which more or less restate the multifactor test of Aérospatiale, and it goes through the Aérospatiale analysis in deciding whether to issue the letters of request to nonparties abroad. What does the Restatement actually say? Here is an excerpt,1Restatement (Third) of the Foreign Relations Law of the United States § 442(1)(c). with the key language highlighted:

In deciding whether to issue an order directing production of information located abroad, and in framing such an order, a court or agency in the United States should take into account the importance to the investigation or litigation of the documents or other information requested; the degree of specificity of the request, etc.

The Aérospatiale analysis applies only when the US court is ordering the party abroad to produce documents. For when a US court orders someone in another state to do something, comity comes into play. Should the court instead defer to the law of the foreign country? Should it require the US litigant to make use of the Evidence Convention instead of ordinary US discovery procedure?

But none of this makes any sense when the person from whom discovery is sought is not a party to the case. It is almost axiomatic that a US court has no power to order a person outside the United States to produce evidence. Our law long ago relaxed the rules on the territorial limits on where summonses can be served, but we have not relaxed the rules on where subpoenas can be served. You might think that this is just a matter of one area of the law progressing more quickly than another, but I think there is a real principle at work. At common law a summons is not coercive. That is why common law civil procedure was not really effective in serving the needs of plaintiffs, and why the law developed coercive means to bring defendants before the court. I wrote a few posts about this legal history back in 2017. But a subpoena really is a command. So it’s not something that an American court can send to a foreign country.2I’m leaving aside the exceptions.

That’s not to say courts should issue letters of request willy-nilly. Issuance of letters is within the court’s discretion. The court can take into account the relevance of the evidence, the schedule of the case, whether the discovery is proportional to the needs of the case, and any other factors that are relevant. But there is no reason to consider the competing interests of the two countries, whether the evidence is important enough to justify interfering in another country’s business, and so forth, especially since when those factors weigh against US discovery procedures, the alternative is a letter of request or a letter rogatory. When the court wants to express comity, it simply asks the foreign court for assistance and leaves it to the foreign court to decide whether or not to grant the request (of course, bearing in mind the obligations that the Evidence Convention imposes on states that are parties to it). In other words, it sends a letter of request. That’s what I mean when I say that letters of request embody comity.

In short: do not do the Aérospatiale analysis when the evidence is sought from a non-party. It doesn’t make sense.

Image credit: Katja Radon (CC BY). Not the mine related to this case, as far as I know.

• 1 Restatement (Third) of the Foreign Relations Law of the United States § 442(1)(c).
• 2 I’m leaving aside the exceptions.

https://lettersblogatory.com/2024/10/09/case-of-the-day-south32-chile-v-sumtomo/

#HagueEvidenceConvention #Netherlands #UK

The case of the day is Nidec Motor Corp. v. Broad Ocean Motor LLC (E.D. Mo. 2024). This is a patent infringement case that was brought in 2013 (!). The defendants are Chinese companies that refused to comply with requests for production under FRCP 34 on the grounds that complying with the requests could cause them to violate Chinese law. The main relevant Chinese law is Article 36 of the new Data Security Law, which provides:

The competent authorities of the People’s Republic of China shall handle requests for data made by foreign judicial or law enforcement authorities, in accordance with the relevant laws and international treaties or agreements concluded or acceded to by the People’s Republic of China, or in accordance with the principles of equality and reciprocity. Without the approval of the competent authorities of the People’s Republic of China, organizations or individuals in the People’s Republic of China shall not provide data stored within the territory of the People’s Republic of China to any overseas judicial or law enforcement body.

Does this statute, taken at face value, bar a Chinese company from responding to a request for production under FRCP 34? After all, a request for production is not an order of a US court to produce documents to the court, but only a request from one party to another party for production of documents to the requesting party. On the other hand, these disputes generally come before US courts when the requesting party seeks an order from the court to compel the Chinese company to produce the documents. Even then, though, the documents are not provided to the US court, but rather, to the requesting party. The cases are split. Several US decisions have held that the Chinese statute does not bar cooperation with US discovery requests for these reasons,1See, e.g., Motorola v. Hytera Communications, 2023 U.S. Dist. LEXIS 161194 (N.D. Ill. 2023); Philips Medical Systems v. Buan, 2022 U.S. Dist. LEXIS 35635 (N.D. Ill. 2022). But another court has found the statute unclear in cases where the US court has ordered the production.2See Concepts NREC v. Xuwen Qiu, 662 F. Supp. 3d 496 (D. Vt. 2023). The Chinese defendants did come forward with a letter from the Zhonshan Municipal Bureau of Commerce, which probably they solicited, indicating that the companies should comply with the law, but without really explaining what that meant here. The Bureau of Commerce letter also seems to say that the statutory obligation to seek permission from Chinese authorities only extended to cases involving “important data,” which may or may not be a reference to new Chinese regulations discussed in a March 2024 client alert from WilmerHale, but I am not sure.

In any event, the court, in deciding an earlier motion to compel, had rejected the argument that the DSL was sufficient to require resort to the Hague Evidence Convention. The Chinese defendant threw a new element into the mix, arguing that since the decision on the earlier motion, China has amended the Counterespionage Law, which now provides that espionage includes:

“activities that endanger the national security of the People’s Republic of China,” and “activities carried out … to steal, pry into, purchase or illegally provide state secrets, intelligence, and other documents, data, materials, or items related to national security.”

But the defendant offered nothing to suggest that the new amendment increased the tangible risk of sanctions, and the declaration from a Chinese lawyer submitted with the motion did not even really address the new law.

The court therefore rejected the Chinese defendant’s position, holding that it had offered only speculation that it might be subject to penalties in China. The court went on to observe that:

No one forced Defendants to market products in the United States. They chose to, knowing that they could be haled into American courts, where they would be
subject to the applicable rules.

That last point is important, and it is at the heart of the bigger question of whether the Evidence Convention ought to be mandatory. The US view, and I think the better view from a common law perspective at least, is that once a court has decided you are within the court’s personal jurisdiction, there is no good reason, as a general matter, not to require you to provide evidence as any domestic party would have to, unless you can make a showing that you face a real risk of sanctions for violation of your state’s law.

• 1 See, e.g., Motorola v. Hytera Communications, 2023 U.S. Dist. LEXIS 161194 (N.D. Ill. 2023); Philips Medical Systems v. Buan, 2022 U.S. Dist. LEXIS 35635 (N.D. Ill. 2022).
• 2 See Concepts NREC v. Xuwen Qiu, 662 F. Supp. 3d 496 (D. Vt. 2023).

https://lettersblogatory.com/2024/09/30/case-of-the-day-nidec-motor-corp-v-broad-ocean-motor/

#blockingStatute #China #HagueEvidenceConvention

The case of the day is Spin Master Ltd. v. Aganv (S.D.N.Y. 2024). It’s one of these “schedule A” cases brought against a bevy of accused IP infringers abroad. In this case, the claim is for infringement of trademarks related to the Rubik’s Cube, and the plaintiff asserted that the defendants were in China. The plaintiff sought a temporary restraining order and sought permission to serve process by email.

Regular readers know that service of process by email in China is not permissible when the address of the Chinese defendant is known. This is because service by email is permissible under the Service Convention, if at all, only because email is treated as part of the postal channel under Article 10(a); but China has objected to service by postal channels, as the Convention allows it to do.

Neither the plaintiff nor the court took this indisputably correct argument head-on. Instead, the court found that service by email was proper because the third paragraph of Article 15 of the Service Convention provides:

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

That can’t possibly be right, for two reasons. First, the reference to “preceding paragraphs” means the preceding paragraphs of Article 15, not all the preceding paragraphs of the Convention including Article 10. It makes no sense to think that a provision in the third paragraph in the article on default judgments is a catch-all that overrides every other provision of the Convention, including its exclusive methods of service, “in case of urgency.” Second, service of process is not a “provisional or protective measure.” What Article 15 obviously means is that while a court cannot enter a default judgment until the provisions of Article 15 have been satisfied, it can enter preliminary injunctions, etc.

The case illustrates one of the real problems with “Schedule A” cases. The plaintiff makes assertions about what the law is that go unchallenged, and the court adopts them, too often as a matter of course. Then we see the same mistakes cited as precedents in later cases. This particular mistake should not be allowed to take root.

Image credit: Booyabazooka (CC BY-SA)

https://lettersblogatory.com/2024/09/25/case-of-the-day-spin-master-ltd-v-aganv/

#China #Email #HagueEvidenceConvention

The case of the day is Autotech Technology Development, Inc. v. Carbopress SpA (E.D. Mich. 2024). Autotech had a contract dispute with Carbopress, an Italian firm, and brought suit in federal court in Michigan. Carbopress sought issuance of a letter of request seeking to take the depositions of two witnesses in Italy. Autotech did not oppose the motion outright, but it asked that the court order that its counsel be entitled to participate remotely by video in the Italian proceedings and that Carbopress pay for an interpreter.

The judge correctly refused to order that the US party’s counsel be permitted to attend by video or that an interpreter interpret the proceedings. A letter of request is just that, a request, not an order. It embodies comity. The judge ordered Carbopress to submit a revised proposed letter of request that requested, not ordered, permission to attend remotely and permission to have an interpreter. And the judge specifically noted Article 9 of the Evidence Convention, which provides that while ordinarily the law of the requested state will govern the proceedings, the requesting authority can ask for special measures to be used, and the requested state is supposed to use them “unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties.”

Likely Carbopress, an Italian company who planned to have Italian lawyers at the depositions, was comfortable with the ordinary course of proceedings in Italy, in which the Italian judge questions the witnesses. It is unclear whether the letter of request requested that counsel be permitted to ask follow-up questions. But there is no reason US counsel cannot request greater departures from the ordinary foreign law as special measures. For example, the letter of request can request that the US lawyers lead the questioning. Perhaps an Italian judge will say yes and perhaps not. Perhaps a “no” will be justified by the considerations in Article 9, but the worst that can happen is that the Italian judge says no. A letter of request, after all, is just a request.

Photo credit: Jebulon (CC0)

https://lettersblogatory.com/2024/09/22/case-of-the-day-autotech-v-carbopress/

#HagueEvidenceConvention #Italy

Today I am highlighting the conclusions and recommendations of the 2024 Special Commission relating to Article 23 of the Evidence Convention. Article 23 provides that states may, if they wish, declare that they will “not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.” Many states have made declarations, including, perhaps surprisingly, the United Kingdom. The declarations range from blanket refusals (e.g., Bulgaria: “The Republic of Bulgaria declares that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries”) to declarations that try to distinguish good from bad requests, e.g., the United Kingdom:

In accordance with Article 23 Her Majesty’s Government declare that the United Kingdom will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents. Her Majesty’s Government further declare that Her Majesty’s Government understand “Letters of Request issued for the purpose of obtaining pre-trial discovery of documents” for the purposes of the foregoing Declaration as including any Letter of Request which requires a person:

While there is variation from country to country,1 many countries with UK-style declarations, or “qualified declarations,” mean to say that the requesting authority has to identify the documents with some degree of particularity greater than the particularity generally used in US-style requests for the production of documents or subpoenas for the production of documents.

The Special Commission issued the following conclusion and recommendation on the issue:

The SC noted that the terms of Article 23 continue to be a source of misunderstanding. The SC recalled that Article 23 is intended to ensure that a request for the production of documents must be sufficiently substantiated, so as to avoid requests whereby one party merely seeks to find out what documents may generally be in the possession of the other party to the proceeding.

It went on to approve the UK’s declaration, which it recalled “reflects the purpose of Article 23 more adequately than the wording of the provision itself.”

The hope is that more countries will liberalize their practice. At least when the target of the letter of request is a party to the US case, foreign states have an incentive for liberalization, since US courts make discretionary decisions all the time about whether to require foreign parties to respond to ordinary US discovery requests or whether to require first resort to the Evidence Convention; but if a foreign state has essentially banned document discovery, US courts are more likely to approve ordinary US discovery methods, which leads to more rather than less intrusion. But the C&R also raises another possibility. IS it possible that states that have issued what they consider to be blanket bans on document discovery under the Convention have just misconstrued the Convention? Is there an argument to be made that even when a state has made an unqualified declaration, the state’s central authority ought to construe its own declaration as though it were a UK-style declaration?

https://lettersblogatory.com/2024/08/27/the-special-commission-on-documentary-evidence-under-the-evidence-convention/

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