By Henk Milne & Neil Klein1
Pretrial Discovery in America
Courts outside the United States typically afford extremely limited pre-trial discovery rights to litigants. Depending on the country, the right to inspect an adversary’s core documents may exist, but there is rarely a way to compel pre-trial testimony from an opponent or obtain either documents or pre-trial testimony from a non-party witness.
Foreign litigators encountering American discovery processes for the first time therefore often experience legal culture shock. The discovery tools routinely available in American courts are extremely broad. Most significant among them is the ability to compel the “depositions” (i.e. pre-trial testimony under oath) of both party and non-party witnesses, as well as the production of all relevant, non-privileged documents from all party and non-party witnesses, well ahead of any trial.
Moreover, the scope of inquiry allowed by American rules is extremely broad. Permissible discovery requests are not limited to those calling directly for admissible evidence: the test is whether the document request or deposition question is “reasonably calculated to lead to the discovery of admissible evidence.” If it is, then the documents must be produced or, as the case may be, the questions answered.
Assume our authors represent plaintiff and defendant corporations in a case in an American court. Soon after litigation commences, either party may start taking depositions. In our hypothetical case, Henk sends Neil the first notice of deposition and asks that a named individual, or the “person most knowledgeable” about particular, specified matters at the defendant company, attend at a stated date, time and place – usually a law office – to give his deposition as a witness.
At the appointed time, Neil will turn up with the witness at the designated place. There will be a court reporter present to administer the oath and take down the testimony, as if in a courtroom. And if Henk wants to go to the extra expense, he can also videotape the deposition. There is no judge present and the lawyers run the show.
Henk will probably begin by asking the witness some background questions about his or her education, work history, and so on, before moving on to the core issues. All Henk’s questions are fair game, as long as they arguably may lead to the production of relevant evidence.
The issue of whether any particular answer is admissible into evidence at trial will be determined on a question-by-question basis at the trial itself. Neil is therefore expected to allow the witness to answer all Henk’s questions, unless a particular question calls for the disclosure of privileged material, such as an attorney/client communication or attorney work product. Instructions by Neil to the witness not to answer will not be lightly given, since a clearly improper instruction may lead to eventual monetary or other sanctions by the judge. Of course, Henk will not be allowed to harass, badger and intimidate the witness or improperly restate prior testimony.
When Henk is done with his questions, Neil gets to examine the witness, if he wishes. Since in this example the witness is his client, and he has ready access to that witness, he will probably prefer not to do so, unless it is to clear up something that his client stated ambiguously or unfavorably.
The same procedure is followed with regard to non-party witnesses, except that their attendance – with or without documents – must be compelled by “subpoena” (a pro forma court paper, issued by the attorney in most jurisdictions). While expert witnesses are usually paid for their time, ordinary fact witnesses are paid only a minimal attendance fee and the ordinary cost of copying any documents they produce. The witness may have a lawyer present at his or her own expense, who may object to the questions but may not ask anything other than clarifying questions. Most depositions take a few hours, although in complex cases a deposition may last several days.
This pre-trial preparation is routinely conducted in state and federal courts in the U.S.
American Depositions for Foreign Cases
It is not widely known, even to American lawyers, that there is a right to use the U.S. discovery process in aid of foreign litigation if there are relevant documents or witnesses in the United States. Federal statute, 28 U.S.C. Section 1782, provides:
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal . . . The order may be made . . . upon the application of any interested person . . . To the extent the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
The statute is little known and has been sparingly used. Its expansive terminology has always raised questions in the minds of those who first come across it, like: “Does it really mean what is says,” or “Can it be that easy?”
In our experience, the short answer to both questions has been “yes.” Section 1782 orders can be obtained to gather evidence for use in foreign cases on the basis of simple ex-parte motions, the payment of minimal court filing fees, and without great fuss. Federal courts usually issue the order within days of a request, and the local American lawyer retained by the witness (if any) will not find the deposition procedure unusual or generally try to obstruct the process. The end result is that the deposition is usually taken, the documents produced, and a sworn transcript made available for use in the foreign court.
Further, as the evidence was taken under a U.S. statute intended to aid foreign courts, ordered to be taken by a U.S. judge, and taken under a U.S. court-ordered oath, foreign courts usually do not consider their sovereignty infringed upon, and will most likely not quibble about accepting the evidence.
U.S. Supreme Court Precedent
We anticipate the Section 1782 procedure will be more widely used in future due to the 2004 U.S. Supreme Court decision in Intel v. AMD, which affirmed its expansive scope.
This case involved a claim filed by AMD with the Directorate-General for Competition of the Commission of European Communities that Intel had violated European competition law. AMD petitioned a federal court in California under Section 1782 for an order directing Intel to produce certain relevant documents. That court refused because, it determined, there was no pending judicial proceeding and the information sought would not be discoverable under the rules of the foreign forum.
When the case got to the U.S. Supreme Court, it held:
- It did not matter that AMD was not an actual “litigant” in the foreign proceedings; the fact that it had the right to submit information and seek judicial review of the eventual decision qualified it as an “interested person” under Section 1782
- It did not matter that the foreign proceedings were not in a traditional “court;” the Commission qualified as a “tribunal” for Section 1782 purposes
- It did not matter that there was, as yet, no actual suit; the Commission qualified as a “proceeding” under Section 1782
- It did not matter that there was no analogous tribunal or proceeding in the U.S.
- It did not matter that the adverse party had no comparable right of discovery in the foreign tribunal
- There should be no concern about “offending foreign governments” in making a Section 1782 order, since the foreign government could choose how and whether to use the evidence produced
- If there was any concern about maintaining “parity” among adversaries, the federal court could choose to condition discovery on a reciprocal exchange of information
When there are important documents or witnesses located in the United States, (or for instance, a vessel with key crew members, witnesses or documents aboard about to enter a U.S. port) and a case pending abroad, lawyers for such litigants would do well to remember Section 1782.
The process is relatively quick, with costs limited generally to hiring an American attorney familiar with the Section 1782 process to submit the application, draft the proposed order and ultimately take the deposition and/or collect the documents.
Given that our Supreme Court has now disposed of the most obvious objections, and confirmed that “yes, indeed, the statute means what it says” and “it really can be done,” we believe this procedural tool can become a key strategy in an international litigator’s bag of tricks.
This case sets an excellent precedent for boat rental companies to limit their liability under LOLA in these types of cases; tragic though they may be, the blame should not fall on the boat rental company.
1Henk Milne is a Florida attorney, English barrister and member of Aballí Milne Kalil & Escagedo., P.A., in Miami, Florida. Neil Klein is a California attorney, South African solicitor and member of the firm of McKasson Klein in Costa Mesa, California. They have worked together on a number of international cases.