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      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. A practitioner seeking discovery of material abroad that cannot be obtained under the discovery devices available in the non-U.S. jurisdiction, or (where applicable) pursuant to the Hague Convention, may yet have other means of obtaining the information. The crucial issues here are who possesses the material — a party to the litigation or a non-party — and what type of material is sought — documentary or testimonial.
  2. Obtaining Material Abroad from a Party
    1. Perhaps the least complicated form of discovery of material abroad involves obtaining material from a party to litigation pending in the U.S. Assuming that the party is properly before the court, the default rule, based on U.S. Supreme Court precedent, is that discovery can be taken through normal U.S. discovery procedures even if the material to be produced is located abroad. In re Automotive Refinishing Paint Antitrust Litig., 358 F.3d 288, 299 (3d Cir. 2004) (permitting jurisdictional discovery to be taken under Federal Rules of Civil Procedure rather than the Hague Convention) citing Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522 (1987); In re Vitamins Antitrust Litig., 120 F. Supp.2d 45 (D.D.C. 2000) (no requirement to seek discovery under Hague Convention first).
    2. U.S. courts have the discretion to enforce U.S. discovery against non-U.S. parties even if that discovery would not be permitted under the Hague Convention. Societe Nationale, 482 U.S. 522 (1987). This is true even in the face of non-U.S. policies expressly disfavoring such discovery or statutes specifically forbidding it. Linde v. Arab Bank, PLC, 463 F. Supp.2d 310 (E.D.N.Y. 2006).
      1. In Societe Nationale, the Supreme Court left it to the discretion of the trial court, after taking into account considerations of comity and other factors, whether or not to compel a party to provide U.S.-style discovery. Societe Nationale, 482 U.S. 533-540.
      2. Justice Blackmun’s dissent suggested that party discovery from overseas should in the first instance be taken pursuant to the Hague Convention, with resort to U.S. procedures only if that discovery is not successful. Id at 547-568. However, that suggestion has uniformly been rejected, with courts routinely permitting discovery of non-U.S. parties under normal U.S. rules and procedures.
  3. Obtaining Material Abroad from a Non-Party

    1. Even a party to U.S. litigation seeking to obtain material from a non-U.S. non-party may nevertheless have some devices available to it.
      1. If the party seeks material abroad in the possession of a U.S. national or resident, or testimony from an U.S. national or resident located abroad, the party may apply to a U.S. court for a subpoena for the material or testimony under Title 28 § 1783 of the United States Code. In order to obtain such a subpoena, the applicant must show that the discovery sought “is necessary in the interest of justice” and, in other than a criminal action or proceeding, “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.” 28 U.S.C. § 1783 (a)
      2. If the party seeks material abroad in the possession of a non-U.S. entity that can be found in the U.S., or the testimony of such an entity, the party may be able to obtain the material by a subpoena delivered to the entity in the U.S. First American Corp. v. Price Waterhouse LLP, 154 F.3d 16 (2d Cir. 1998) (enforcing document subpoena against non-U.S. accounting firm served on partner of firm residing in Connecticut; no need for party to seek discovery under Hague Convention prior to serving subpoena).

        Practice Tip: If all else fails, the party may be able to obtain the discovery desired by the cooperation of the non-party. A non-party abroad may voluntarily provide documentary evidence or deposition testimony, although if the non-U.S. jurisdiction is one that does not permit U.S.-style depositions, the party may find it more expedient to have the witness travel to the U.S. to give testimony.

  4. The Type of Material Sought

    1. Generally speaking, obtaining testimony from witnesses located abroad can be challenging, requiring a thorough review of the processes and procedures available in the specific non-U.S. jurisdiction. Variables that must be determined before the deposition can even be scheduled include: (1) before whom can the deposition be taken; (2) where can it be taken; (3) by whom can the testimony be recorded, and how; (4) who will actually examine the witness; and (5) what rules of conduct will govern the examination.
      1. If the witness is affiliated with a party and the party will agree or can be compelled to bring the witness to the U.S., the deposition can proceed according to the Federal Rules of Civil Procedure. In many cases, even if not compelled to do so, a party may agree to bring witnesses to the U.S. in order to avoid the burden, time and cost to all parties of obtaining the testimony through other methods.
      2. Similarly, even a non-U.S. non-party witness can be deposed “normally” if the witness is willing to travel to the U.S.
    2. Obtaining documents or other information located abroad can often be seen as “simpler,” because most non-U.S. jurisdictions — like the Hague Convention itself — simply do not contemplate anywhere near the breadth of discovery that is typical in the U.S. Accordingly, when seeking documents abroad other than from a party to the lawsuit, the international practitioner must understand that it may be difficult or impossible to obtain even highly relevant documentary evidence, unless that evidence can be described with particularity and precision. A prototypical case in this regard is Rio Tinto Zinc Corporation v. Westinghouse Electric Corp., [1978] A.C. 547, 619 in which the English Court severely limited the discovery it would grant to a litigant in a U.S. proceeding, stating that “a strict attitude is to be taken by English courts in giving effect to foreign requests for the production of documents by a non-party witness.”

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