Cross-Border Discovery of Evidence From Non-Parties

Image by ChatGPT

It’s rare for me to read a decision on transnational litigation and conclude that the court paid too much attention to international comity. In a recent order resolving a discovery dispute, though, the Southern District of Florida engaged in what struck me as a completely unnecessary comity analysis. The order seemed to misread the Supreme Court’s landmark decision in Société Nationale Industrielle Aérospatiale v. U.S. District Court (1987) and to misunderstand the operation of the Hague Evidence Convention. This post uses that decision to walk through the principles governing the cross-border production of evidence from non-parties.

Background

Much of the litigation arising from transnational discovery disputes involves the choice between ordering discovery under local (federal or state) procedural rules and under the Hague Evidence Convention, a treaty to which the United States is party. The Convention was adopted to enhance cooperation in cross-border discovery. It utilizes a mechanism whereby a court in the forum state may issue a letter of request for the production of evidence in another member state, to be fulfilled by authorities there. By allocating the function of evidence gathering to authorities in the requested state, it avoids the possibility that foreign litigants interfere with that state’s judicial sovereignty by engaging directly in discovery within its borders.

Because discovery under U.S. rules is both broader and faster than under the Convention, many litigants and courts prefer to proceed under local law—even though that can cause precisely the sort of friction the Convention was meant to reduce. In Société Nationale Industrielle Aérospatiale v. U.S. District Court (1987), however, the Supreme Court held that Convention procedures are not mandatory in cases involving evidence located in another member state. Nor did international comity demand first resort to Convention procedures. Rather, it required “a more particularized analysis of the respective interests of the foreign nation and the requesting nation.”

To guide that case-by-case analysis, the Court laid out a set of five factors:

(1) the importance to the . . . litigation of the documents or other information requested;

(2) the degree of specificity of the request;

(3) whether the information originated in the United States;

(4) the availability of alternative means of securing the information; and

(5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.

Critically, though, the choice between Convention procedures and local rules is relevant only when evidence is sought from a person subject to the court’s jurisdiction. When the production of evidence is sought from a non-party located in another Convention member state, a court in the United States generally has no authority to order discovery under local rules. Therefore, the use of Convention procedures in that context is “virtually compulsory.”

Glaxo Group Limited v. Transpire Bio Inc.

In an order issued earlier this month, U.S. Magistrate Judge Jared M. Strauss (U.S. District Court for the Southern District of Florida) considered a motion to issue a letter of request pursuant to the Convention. The plaintiffs, Glaxo Group Limited and GlaxoSmithKline Intellectual Property Development Limited, alleged that Transpire Bio Inc. had attempted to produce a generic version of their inhaler in violation of their patent and trademark rights. Glaxo sought the production of documentary evidence from a third-party consultant in the United Kingdom that had helped Transpire design the allegedly infringing product.

Transpire did not contest the issuance of a letter of request but did seek to limit the scope of the requested discovery. In particular, it argued that the request encompassed certain materials protected by attorney-client privilege and work-product rules. Judge Strauss therefore considered whether the plaintiff’s discovery request should be narrowed prior to issuance. His analysis proceeded in two stages, the first focused on the scope of the requested discovery and the second on international comity.

Scope of Discovery Under the Convention

When a party seeks the issuance of a letter of request under the Convention, its opponent may ask the court to narrow or tailor the request. That raises ordinary “scope” issues governed by Federal Rule of Civil Procedure 26(b), which limits discovery to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” The Rule goes on to set out a number of considerations relevant to the analysis, including “whether the burden or expense of the proposed discovery outweighs its likely benefit.”

In applying this standard, Judge Strauss considered the extra expense that international discovery might entail. Nevertheless, he concluded that “the evidence sought by [Glaxo] appears to be highly relevant, at least partly non-privileged, and proportional to the needs of the case.”

In my view, this should have been the end of the analysis. However, the court then moved on to a consideration of international comity.

International Comity and the Convention

The court undertook a case-specific comity analysis following the factors laid out in Aérospatiale. In particular, it asked whether “the national interests of the United Kingdom outweigh those of the United States to such a degree that the letters of request should not be issued or should not be issued without the narrowed scope” requested by the defendant.

The point of the Aérospatiale comity analysis, as indicated above, is to inform the choice between discovery under U.S. rules and discovery under Convention procedures when those two options are available. Ordering the direct production of evidence abroad under U.S. rules interferes with the judicial sovereignty of the requested state and risks conflict with local laws and procedures. It should therefore be done only following full consideration of the case-specific implications.

When Convention procedures are used, however—as is necessarily the case when evidence is sought from non-parties not subject to the jurisdiction of the court—this analysis is unnecessary. The whole point of the treaty framework is to ensure mutual respect of sovereign interests. Most fundamentally, it protects judicial sovereignty by allocating the function of evidence gathering to authorities in the requested state. And Article 12 provides that a requested state may refuse to execute a letter of request if it “considers that its sovereignty … would be prejudiced thereby.” The Convention therefore leaves it to courts in the requested state to decide whether complying with a request for evidence would undermine important local interests.

Conclusion

To recap: Aérospatiale lays out the framework for courts to use in choosing between local discovery rules and the Convention letter-of-request mechanism. In cases requiring production of evidence by non-parties that are located in another state signatory to the Convention, discovery under the Convention is the only option and an Aérospatiale analysis is superfluous.