New Article on Cross-Border Discovery

Photo by Juliana Kozoski on Unsplash

In the most recent issue of Judicature, Judge Michael Baylson and Professor Steven Gensler have a new article related to cross-border discovery—that is, discovery abroad in support of adjudication in U.S. courts. The whole article is worth readers’ time, though I will only briefly summarize it here.

As TLB readers know well, cross-border discovery is important. Baylson and Gensler note the increasing attention on cross-border discovery in U.S. courts. They also note the uncertainty around the use of the Hague Evidence Convention (HEC) in civil cases in the United States.

Baylson and Gensler rightly observe that the Supreme Court answered some relevant questions in the Aerospatiale decision. But they also rightly observe that many questions remain unanswered. As they explain:

Aerospatiale is essentially silent on other questions regarding the intersection of HEC discovery and the federal rules scheme. Is it subject to the early moratorium under Rule 26(d) or the discovery deadline set in the Rule 16(b) scheduling order? Does it count toward any numerical limits on discovery? Does the Rule 26(e) duty to supplement apply? Are requests to use the HEC process subject to Rule 26(g)’s duties and certifications? What about objections and responses? Do any aspects of HEC discovery fall within the sanctions provisions of Rule 37? For example, what happens if a court learns that documents produced were fake, or that the production was materially incomplete? One might view all of these questions as variations on a larger theme: To what extent is the use of the HEC process (or other diplomatic channels) “discovery” under the rules in the first place?

Baylson and Gensler do not answer all of these questions, but they observe that the Federal Rules of Civil Procedure do not answer them either: “One might expect the civil rules to establish a procedural framework for judges and attorneys to follow when confronted with the daunting prospect of seeking cross-border discovery. But they largely don’t . . . .” Therefore, the authors propose new rule-making on cross-border discovery.

The authors also, more controversially, suggest revisiting Aerospatiale’s decision to make the HEC purely optional, rather than adopting the first-resort rule as endorsed by Justice Blackmun’s concurring opinion.

Whether any or all of their proposals will become law, either through rule-making or otherwise, only time will tell.