Discovery Abroad: The Hague Convention - Part 3 Chapter 2 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
In the previous chapter we discussed generally methods of obtaining evidence abroad for use in United States litigation and, in so doing, focused in large part on the procedures provided in The Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters (“The Hague Evidence Convention” or “convention”). The availability of The Hague Evidence Convention has recently raised the issue of its applicability in cases in United States courts to which a foreign entity is a party. Many foreign parties, plaintiffs as well as defendants, have opposed discovery in accordance with state and federal civil procedure rules, on the ground that the Convention provides the exclusive means of obtaining discovery from them. Such a position, if accepted by the courts, could profoundly change the way in which discovery is conducted in lawsuits involving foreign parties. Thus far, courts have taken differing views as to the extent to which The Hague Evidence Convention is exclusive.
If discovery from a foreign party from a country that is a signatory of the Convention may be conducted through the procedures of the Convention and not through state or federal rules of civil procedure, there will be different levels and kinds of discovery from different parties in the same lawsuit. There will be, to one degree or another, a lack of mutuality of obligation to provide evidence.
Is such a result mandated by The Hague Evidence Convention?