Assessing Sovereign Interests in Cross-Border Discovery Disputes: Lessons from Aerospatiale

Abstract:     
The Hague Evidence Convention addresses a particular kind of jurisdictional conflict: the conflict between one nation's issuance of extraterritorial discovery orders and another nation's right to govern discovery activity taking place within its territory. The particular mechanisms that the Convention establishes for use in cross-border discovery proceedings, and the compromises between civil-law and common-law procedures for evidence gathering that it embodies, were effected with that system goal in mind. In Aerospatiale, the Supreme Court considered the scope of the Convention's application, addressing the interaction of Convention procedures and pre-existing federal rules on evidence gathering. As portions of the decision make clear, the Court was well aware of the international system needs served by the Convention. In establishing the test to be applied by lower courts in future cases concerning the Convention's applicability, however, the Court articulated it in a way that left no room for system concerns. Disregarding the interests in sovereignty voiced by the petitioner and echoed by a number of states party to the Convention, the Court crafted a test that considers only sovereign interests in the particular litigation. The paper begins by analyzing the Court's decision and identifying the means by which it de-emphasized interests in sovereignty. It then turns to lower-court decisions over the past fifteen years, examining certain trends that have developed as a result of the Aerospatiale approach and arguing that these trends have resulted in insufficient consideration of system needs. It concludes by examining post-Aerospatiale discovery practice in the context of today's international litigation environment.

Keywords: Discovery, comity, international litigation, aerospatiale, sovereignty, hague evidence convention

Accepted Paper Series