Rethinking Jurisdictional Discovery under the Hague Evidence Convention

Article excerpt


When a federal court in the United States compels the discovery of information located abroad to determine whether it has jurisdiction over the defendant, the court can apply the Federal Rules of Civil Procedure or the Hague Evidence Convention. This Note argues that the approach taken by most courts--applying the balancing test formulated by the Supreme Court in Societe Nationale Industrielle Aerospatiale v. U.S. District Court and favoring application of the Federal Rules--is misguided. Courts should apply the Evidence Convention more often in jurisdictional discovery disputes. They can do so under the existing legal framework with one of three holdings: (1) the Aerospatiale test does not apply to jurisdictional discovery disputes and parties must use the Evidence Convention; (2) the Aerospatiale test does not apply and the Evidence Convention should be used as a first resort, turning to the Federal Rules only when the Convention's procedures prove infeasible; or (3) the Aerospatiale test applies, but recognition that the court has not established personal jurisdiction weighs so heavily in favor of applying the Evidence Convention that it has a similar effect as the first-resort approach. Each of these alternatives is preferable to the current approach.



     A. Discovery and Jurisdiction in the
        United States
     B. Evidence Gathering Outside of the
        United States
     C. Hague Convention on the Taking of
        Evidence Abroad in Civil or
        Commercial Matters
     D. The Aerospatiale Decision
     E. Lower Courts' Application of Aerospatiale
     F. Comity
     G. Jurisdictional Discovery Under the
        Hague Evidence Convention

     A. The Evidence Convention as the Exclusive
        Means for a Party to Obtain
        Jurisdictional Discovery Abroad
     B. The Evidence Convention as a First Resort
     C. Applying the Evidence Convention as a
        Result of the Aerospatiale Balancing Test



Justice Blackmun, in the U.S. Supreme Court decision Societe Nationale Industrielle Aerospatiale v. U.S. District Court (Aerospatiale), explained that, "no aspect of the extension of the American legal system beyond the territorial frontier of the United States has given rise to so much friction as the request for documents associated with investigation and litigation in the United States." (1) The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Evidence Convention), ratified by the United States in 1972, reflects an effort on behalf of the signatory countries to find common ground in light of significant differences in evidence-gathering procedures. (2) In 1987, the U.S. Supreme Court, in Aerospatiale, held that the Evidence Convention is an optional procedure that can be used in lieu of the Federal Rules of Civil Procedure (Federal Rules). (3) The Court granted lower courts the discretion to employ the procedures of the Evidence Convention in a case after examining "the particular facts, sovereign interests, and likelihood that resort to those procedures will prove effective." (4) Subsequent lower court cases generally have placed the burden of persuasion on the party requesting application of the Evidence Convention. (5) Furthermore, these courts usually conclude that the party failed to meet that burden and apply the Federal Rules. (6)

In Aerospatiale, the defendant did not contest personal jurisdiction, and as a result, the Court did not address whether its holding applies to jurisdictional discovery. A number of district courts and one appellate court have addressed this issue, and most have held that (1) the Aerospatiale balancing test applies equally to jurisdictional discovery, and (2) the balancing test favors application of the Federal Rules. (7) The arguments in support of these positions are misguided. …