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.
Prior to the decision of the U.S. Supreme Court last year in Societe Nationale Industrielle Aerospatiale v. United States District Courtfor the Southern District of Iowa, there was a divergence of views as to whether The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters provides the exclusive means of obtaining pre-trial discovery in civil actions in federal and state courts from foreign nationals of signatories to the convention. In June of 1987, a majority of the Supreme Court in that case held that The Hague Convention did not provide exclusive procedures for obtaining pre-trial discovery of documents and other information located in a foreign signatory’s territory.
The Supreme Court held that the text and legislative history of The Hague Convention “unambiguously supports the conclusion that it was intended to establish optional procedures that would facilitate the taking of evidence abroad.” Parties are free to seek discovery from foreign litigants (parties and third parties) under either the Convention or the Federal Rules of Civil Procedure (or pertinent state court rules of procedure).