Reply Brief — Société Nationale Industrielle Aérospatiale v. United States District Court

—BOSERHFHS PANIC. JR

| CLERK :

i. —™

OF THE

United States

OCTOBER TERM, 1985

SocieTeE NATIONALE INDUSTRIELLE AEROSPATIALE AND

Societe De CONSTRUCTION D’Avions De TourRISM,

Petitioners,

y

UNITED STATES DISTRICT COURT

For THE DISTRICT OF IOWA,

Respondent.

(DENNIS JONES, JOHN AND ROSA GEORGE,

Real Parties in Interest)

JOHN W. Forp*

LAWRENCE N. MINCH

WILLIAM L. ROBINSON

Littick McHose & CHARLES

Two Embarcadero Center

San Francisco, CA 94111

Telephone: (415) 984-8200

Attorneys for Petitioners

*Counsel of Record

BOWNE OF SAN FRANCISCO INC «+ 190 NINTH ST + SF. CA 94103 + (415) 664-2300

TABLE OF CONTENTS

Page

1. The only factors which distinguish this case from

Messerschmitt are additional reasons why certiorari

Ge PEED oc cccccceccesscovereceuccos:

II. Respondents misstate the question presented as one of

judicial power rather than as one of international

GEE dire Ph uBR N06 abe ccdveucseseneceseesens 4

Nm

II1Il. Respondents’ conjecture that use of the Convention

would prove futile is not a basis for dispensing with a

EE Cre hSCCE Vetoes ces cetiviyse eos 6

gs Ee SE DIT ep <a a

il

TABLE OF AUTHORITIES

Cases

Gebr. Eickhoff Maschinfabrik und Eisengieberei v. Starcher,

SSB BE. Ge CW. VR FED vvcccocceceséencessens

Graco Inc. v. Kremlin, Inc., 101 F.R.D. 503 (N.D. Ill. 1984)

Hamilton-Burton Shoe Co. v. Wolf Bros. & Co., 240 U.S.

Se Ge 0 vcccendévesséanenecesuce eae

Hilton v. Guyot, 159 U.S. 113 (1895) ........ cc eee ee,

Hughes Tool Co., v. Trans World Airlines, 409 U.S. 363

CS FP rr ee ee EE Ne

In re Anschuetz & Co., GmbH, 754 F.2d 602 (Sth Cir.

1985), petition for cert. filed, 54 U.S.L.W. 3084 (U.S.

Aunty, U5, CR PGPCO. GED cccccccvsvccsccececseucs

International Society for Krishna Consciousness, Inc. v. Lee,

165 PRD. 45S GERI. TRG) cccccccccccccccece:

Lasky v. Continental Products Corp., 569 F.Supp. 1227

Ee GO PP

Messerschmitt Bolkow Blohm, GmbH v. Walker,

54 U.S.L.W. 3686-87 (U.S. April 22, 1986)

Coe, SE v0.60 00006000005505nsi eee |

New Haven Inclusion Cases, 399 U.S. 392 (1969) .......

Philadelphia Gear Corp v. American Pfauter Corp., 100

tf tf YS Pere es

Pierburg GmbH & Co. KG v. Superior Court, 137

Cal.App.3d 238, 186 Cal.Rptr. 876 (1982)............

Slauenwhite v. Bekum Maschinfabriken GmbH, 104 F.R.D.

GOS GHA, Beet, Ge o bk db0'c0-n6okus oeoes tecenmesens

Lis. wo, Pelee, GOS GA Gee GOED ccccvcccccceséecsus

Vincent v. Ateliers de la Motobecane, S.A., 193 N.J. Super.

FOG, GES Cie Gee CH oc kd occccvnecccunsesouueses

Volkswagenwerk A.G. v. Falzon, 465 U.S. 1014 (1984)

rf PP Perrerereriryr rr

Volkswagenwerk A.G. v. Superior Court, 123 Cal.App.3d

OER, TFS CRN. GO CISGED ovccccccvccencsséecess

Work v. Bier, 106 F.R.D. 45 (D.D.C. 1985) ............

Page

2,3

4,7

»me

ili

TABLE OF AUTHORITIES

Statutes and Treaties .

age

French Penal Code Law No. 80-538 (“French Blocking

ek eee eaceebcesccecces = * Fo

Hague Convention on the Taking of Evidence Abroad in

Civil or Commercial Matters, opened for signature,

March 18, 1970, 23 U.S.T. 2555, T.1.A.S. No. 7444

(“Hague Evidence Convention”) ..... 1 Ei Aa sop passim

Rules of the Supreme Court:

ae h sates ess sees cs he eae oe. | 2

eee oe cebeccéécccccccccecc: 2

EE 2

Other Authorities

Edwards, Taking of Evidence Abroad in Civil or Commer-

cial Matters, 18 Int’! & Comp. L.Q. 646 (1969) ...... 6

J. Moore, H. Bendix, B. Ringle, Moore’s Federal Practice

ee ce ccceces

Oxman, The Choice Between Direct Discovery and Other

Means of Obtaining Evidence Abroad: The Impact of the

Hague Evidence Convention, 37 U. Miami L. Rev. 733

EE Ee 6

Report of the United States Delegation to the Special

Commission on the Operation of the Convention of 18

March 1970 on the Taking of Evidence Abroad in Civil

or Commercial Matters, reprinted in 17 Int'l Legal

Ns ws oc cecceccccecccecccces 7

Report on the Work of the Special Commission on the

Operation of the Convention of 18 March 1970 on the

Taking of Evidence Abroad in Civil or Commercial

Matters, reprinted in 17 Int'l Legal Material 1425

Es tees becebccedéisvccsceseccecs 7

Restatement (Second) of Foreign Relations Law of the

Neen. euueecdsees 6

Nm

No. 85-1695

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1985

SOCIETE NATIONALE INDUSTRIELLE AEROSPATIALE AND

Societe DE CONSTRUCTION D’Avions De TourRISM,

Petitioners.

Vv.

UNITED STATES District COURT

FOR THE DISTRICT OF IOWA,

Respondent.

(DENNIS JONES, JOHN AND ROSA GEORGE,

Real Parties in Interest)

REPLY BRIEF IN SUPPORT OF PETITION

The Court has acknowledged the importance of the questions

presented here by its grant of certiorari in Messerschmitt Bolkow

Blohm, GmbH v. Walker, 54 U.S.L.W. 3686-87 (U.S. April 22,

1986) (No. 85-99). Respondents concede that Messerschmitt

raises similar issues to this case but assert, without explanation,

that these issues are somehow distinguishable. Both this case and

Messerschmitt present the question of whether U.S. courts are

free to disregard the procedures of the Hague Evidence Conven-

tion where discovery of evidence located abroad is sought from a

foreign national over whom the court has personal jurisdiction.

The only factors which distinguish this case from Messerschmitt

are additional reasons why certiorari should be granted or, alter-

2

natively, why the Court should defer action on this case until after

Messerschmitt is decided. Respondents’ arguments to the contrary

show a fundamental misunderstanding of the \iague Evidence

Convention and the principle of international comity.

THE ONLY FACTORS WHICH DISTINGUISH THIS CASE

FROM MESSERSCHMITT ARE ADDITIONAL REA-

SONS WHY CERTIORARI SHOULD BE GRANTED

The decision below holds that the Hague Evidence Convention

does not apply to the discovery sought in this case. It supports

that conclusion by quoting from and citing to the Fifth Circuit’s

decisions in Messerschmitt and In re Anschuetz & Co., GmbH,

754 F.2d 602 (Sth Cir. 1985), petition for cert. filed, 54 U.S.L.W.

3084 (U.S. Aug. 13, 1985) (No. 85-98). See Pet. App. A at 4a-

5a. At a minimum, the Court’s decision to review Messerschmitt

requires reconsideration of the decision below, which follows and

applies Messerschmitt. There are, however, certain factors which

distinguish this case from Messerschmitt and which the Court

should consider as additional reasons to hear this case in conjunc-

tion with or in addition to Messerschmitt.

' Respondents also misread Supreme Court Rule 18. They argue that,

because the petition concerns review of a district court’s interlocutory

order, it should be heard only if it presents a question “of such

imperative public importance as to justify the deviation from normal

appellate practice.” Brief in Opposition at 7. Rule 18 applies only to the

question of whether the Court should grant certiorari to review a case

before a court of appeals has entered any order or judgment. 12 J.

Moore, H. BENpIx, B. RINGLE, Moore’s FEDERAL PRACTICE

q 434.01 (2d ed. 1982). See, e.g. U.S. v. Nixon, 418 U.S. 683 (1974);

New Haven Inclusion Cases, 399 U.S. 392 (1969). Here the court of

appeals has reached a final decision on the merits of the matter before it.

Moreover, under 28 U.S.C. § 1254, the Court has power to review by

certiorari federal appellate decisions which rule on interlocutory orders,

and it has often done so where, as here, the standards of Rule 17 have

been satisfied. See, ¢.g., Messerschmitt, Hughes Tool Co. v. Trans World

Airlines, 409 U.S. 363 (1973); Hamilton-Brown Shoe Co. v. Wolf Bros.

& Co., 240 U.S. 251 (1916).

3

The first such factor is that disclosure of the documents and

information sought by respondents will violate French Penal Code

Law No. 80-538 (the “French Blocking Statute’). There is no

blocking statute at issue in Messerschmitt. Such statutes have a

special significance in performing the comity analysis which the

Solicitor General has commended to the Court. The Solicitor

General has told the Court, first, that “courts should refrain, when

feasible, from ordering a party to perform acts that would violate

the laws or clearly articulated policies of a foreign government.”

Second, the Solicitor General has said that the existence of a

blocking statute might be considered “as a measure of the foreign

nation’s depth of resolve concerning its ‘judicial sovereignty.’ ””

A second important factor which distinguishes this case from

Messerschmitt is that the decision below makes no pretext of

engaging in a comity analysis as to whether the procedures of the

Hague Evidence Convention should be followed. The decision

below states categorically that the Convention does not apply to

discovery of evidence and information located abroad from a

foreign national over whom the court has personal jurisdiction so

long as the physical production of the documents and information

occurs in the United States. Pet. App. at 5a. Thus, even were the

Court to adopt the Solicitor General’s view that the Mes-

serschmitt court engaged in an adequate comity analysis and

reached an “essentially correct” result,’ the decision below would

not be vindicated.

Finally, unlike Messerschmitt, this case has not yet gone to

trial. Although counsel for Messerschmitt has informed the Court

that the Hague Evidence Convention question there presented

has not become moot because appeals are being taken, there

remains some risk that mootness will occur before the Court

decides Messerschmitt. Such risk is remote here.

? Brief for United States as Amicus Curiae at 11, Amschuetz and

Messerschmitt.

Id. at 15.

* Id. at 6.

4

RESPONDENTS MISSTATE THE QUESTION PRE-

SENTED AS ONE OF JUDICIAL POWER RATHER

THAN AS ONE OF INTERNATIONAL COMITY

Respondents and the decision below appear to believe that the

Convention can be circumvented whenever a court has personal

jurisdiction over a foreign national by ordering that the physical

production of the documents and information located abroad take

place on American soil. This position creates a distinction not

found in the treaty and confuses in personam jurisdiction with the

exercise of the power to compel.

Respondents assert repeatedly that the Hague Evidence Con-

vention does not apply at all to the discovery requests here in

issue. While the decision below indeed so held, this is contrary to

the weight of authority, including many of the decisions on which

respondents and the court below rely.”

The Hague Evidence Convention exists to protect the judicial

sovereignty of its signators and to foster mutual judicial coopera-

tion in civil or commercial matters.° By its terms, the Convention

applies equally to the discovery of evidence abroad from litigants

and non-litigants. Nowhere in the language of the Convention is a

distinction drawn between parties and non-parties. In its state-

ments to the Court, the Solicitor General has explicitly rejected

such a distinction:

>See, e.g. Work v. Bier, 106 F.R.D. 45, 56 (D.D.C. 1985);

Slauenwhite v. Bekum Maschinfabriken GmbH, 104 F.R.D. 616, 618-

19 (D. Mass. 1985); Graco, Inc. v. Kremlin, Inc., 101 F.R.D. 503, 520-

24 (N.D. Ill. 1984); International Society for Krishna Consciousness,

Inc. v. Lee, 105 F.R.D. 435, 443-44 (S.D.N.Y. 1984); Lasky v.

Continental Products Corp., 569 F. Supp. 1227, 1229 (E.D. Pa. 1983).

®“The foundation of the Convention is to avoid international friction

where a domestic state court orders civil discovery to be conducted

within the territory of a civil law nation that views such unilateral

conduct as an intrusion upon its judicial sovereignty.” Pierburg GmbH

& Co. KG v. Superior Court, 137 Cal. App. 3d 238, 244, 186 Cal. Rptr.

876 (1982).

~~.

5

The fact that a state court has personal jurisdiction over a

private party . . . does not mean that treaty limits on proceed-

ings for the taking of evidence abroad somehow do not apply

to discovery orders addressed to such parties. The Evidence

Convention protects the judicial sovereignty of the country in

which evidence is taken, not the interests of the parties to the

suit. Accordingly, its strictures apply regardless of the exis-

tence of personal jurisdiction. [Brief for United States as

Amicus Curiae at 7 n.3, Volkswagenwerk A.G. v. Falzon,

465 U.S. 1014 (1984) (appeal dismissed) (emphasis

supplied). ]

Respondents consistently misstate the question presented here

as one of judicial power.’ No one denies the jurisdiction of the

district court to order petitioners, as parties to the action before ii,

to give discovery of evidence in France. Rather, the issue is

whether, “in the exercise of judicial restraint based on interna-

tional comity,”* the court should require respondents to use the

Convention’s procedures. As one commentator has explained:

The fact that the witness, documents, or person in control of

documents or other evidence located abroad is subject to the

jurisdiction of the court does not necessarily mean that the

American court should apply the ordinary discovery prac-

tices of the forum.

* * >

The existence of jurisdiction is relative rather than abso-

lute. The notion that jurisdiction to command appearance

before the court “domesticates” the witness or party for al!

purposes relevant to the litigation is fallacious. The court

should not ignore the foreign nationality or locus of the

’ Respondents state the question as:

[M]ay a district court order a foreign defendant over whom it

has personal jurisdiction to respond to interrogatories and requests

for production in the United States, even if the defendant must

resort to sources of information located abroad? [ Brief in Opposi-

tion at 10.]

® Volkswagenwerk A.G. v. Superior Court, 123 Cal. App. 3d 840, 859,

176 Cal. Rptr. 874 (1981).

6

witness or evidence. [Oxman, The Choice Between Direct

Discovery and Other Means of Obtaining Evidence Abroad:

The Impact of the Hague Evidence Convention, 37 U. Miami

L. Rev. 733, 739-41 (1983).]

Ordering documents to be produced on American soil does not

make the issue disappear. Civil law countries regard the taking of

evidence as a judicial function rather than as an act of the parties;

when evidence is taken without the participation of the country

where the evidence is located, its judicial sovereignty is consid-

ered violated. See Edwards, Taking of Evidence Abroad in Civil

or Commercial Matters, 18 Int'l & Comp. L.Q. 646, 647 (1969).

While the degree of intrusion on foreign judicial sovereignty

would be an appropriate factor to consider in a comity analysis,”

respondents and the decision below improperly employ a geo-

graphic fiction as a ground for dispensing with a comity analysis

entirely.

RESPONDENTS’ CONJECTURE THAT USE OF THE

CONVENTION WOULD PROVE FUTILE IS NOT A

BASIS FOR DISPENSING WITH A COMITY ANALYSIS

Respondents, like the decision below, do not squarely address

the question of whether international comity requires adherence

to the procedures of the Hague Evidence Convention here, at

least in the first instance. Instead, respondents attempt to stand

the question on its head by challenging petitioners to prove that

use of the Convention’s procedures will be effective.

Respondents have made no attempt to employ the Conven-

tion’s procedures. As several courts have noted, until a party

makes prop.: pplication for the evidence located abroad through

a letter of request, we cannot know what discovery it can obtain.'°

* See generally RESTATEMENT (SECOND) OF FOREIGN RELATIONS

LAW OF THE UNITED StaTeEs § 40 (1965).

'° See, e.g. Gebr. Eickhoff Maschinfabrik und Eisengieberei v.

Starcher, 328 S.E. 2d 492, 502 (W. Va. 1985); Vincent v. Ateliers de la

Nonetheless, respondents’ arguments that use of the Convention’s

procedures would be futile are not well founded.

Respondents point first to France’s declaration under article 23

of the Convention, reserving its right not to execute letters of

request “issued for the purpose of obtaining pre-trial discovery of

documents as known in Common Law countries.” The Court

should not assume that countries which have exercised their right

under article 23 will fail to cooperate in providing requested

evidence contained in documents. To the contrary, it appears that

this reservation was only intended to prevent discovery of a

“fishing nature.”'' According to the Special Commission on the

Convention’s operation, “[r]efusal to execute turns out to be very

infrequent in practice.”'* Moreover, the Convention narrowly

circumscribes those situations in which the execution of a letter of

request may be refused. Art. 12, Pet. App. at 30a. It also expressly

contemplates good faith attempts by foreign courts to implement

any legitimate discovery request. Art. 9, Pet. App. at 29a." In

matters similar to the present one, the French Ministry of Foreign

Affairs has advised foreign litigants to seek information of a

technical or commercial nature through the Convention’s

procedures. '*

Motobecane, S.A., 193 N.J. Super. 716, 475 A.2d 686, 690 (1984);

Lasky v. Continental Products Corp., 569 F. Supp. at 1229.

'' Report of the United States Delegation to the Special Commission

on the Operation of the Convention of 18 March 1970 on the Taking of

Evidence Abroad in Civil or Commercial Matters, reprinted in 17 Int’!

Legal Materials 1417, 1421 (1978).

? Report on the Work of the Special Commission on the Operation of

the Convention of 18 March 1970 on the Taking of Evidence Abroad in

Civil or Commercial Matters, reprinted in 17 Int’! Legal Materials 1425,

1431 (1978).

'' See Philadelphia Gear Corp. v. American Pfauter Corp., 100

F.R.D. 58, 61 (E.D. Pa. 1983); Volkswagenwerk A.G. v. Superior

Court, 123 Cal.App.3d at 858.

'* See Vincent v. Ateliers de la Motobecane, S.A., 475 A.2d at 689-

90.

8

Respondents also mention that France has declined to make a

declaration under article 18 that it will use compulsion to assist

diplomatic officers to take evidence in France. Article 18, how-

ever, is concerned with compulsion for the taking of oral testi-

mony before an official of the requesting State and has no

relevance to the written discovery requests here in issue.

Nor does France’s enactment of a blocking statute indicate, as

respondents claim, an “official policy” to bar discovery from

French litigants in United States courts. See Brief in Opposition

at 14. On the contrary, because the French Blocking Statute

contemplates criminal penalties only for the disclosure of infor-

mation not made through the procedures of the Hague Evidence

Convention, it expresses a strong French governmental policy in

favor of the Convention’s use. This clearly articulated policy is an

important comity consideration favoring adherence to the Con-

vention’s procedures.

The heart of respondents’ objection to use of Hague Evidence

Convention procedures is that France “will use its own unreview-

able discretion to decide what, when, and where litigants will be

able to obtain information necessary to prepare their case.” Brief

in Opposition at 14. While it cannot be expected that the French

government would exercise no control over discovery on its soil,

use of the Convention does not require the American court to

surrender its jurisdiction over the foreign national. A party dissat-

isfied with the fruits of discovery conducted through the Conven-

tion can return to the trial court for further assistance. The court

would then be in a position to weigh the interest of comity against

the needs of the particular litigant on the basis of a record instead

of on the basis of conjecture.’

'S Respondents and the decision below suggest that allowing the trial

court to order further discovery if requests made through the Conven-

tion’s procedures are not honored would be “the greatest insult to the

civil law nation’s sovereignty”. Pet. App. at 7a; Brief in Opposition at 15.

This argument misunderstands the nature of comity. International

comity is concerned with avoiding conflicts with the sovereign interests

of foreign nations where possible, not with “mere courtesy and good

will.” Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).

Finally, respondents claim that the petition asks the Court to

issue an “advisory opinion” on the French Blocking Statute."

This is false. The questions presented concern the applicability

and use of the Hague Evidence Convention. They have been

ruled upon by two lower courts here as well as by numerous other

courts. Respondents’ specious “ripeness” argument treats the

question of deference to the French Blocking Statute in isolation

from the question of whether the Convention’s procedures should

be followed, and not as a factor in a comity analysis. It is only in

this latter context that any issue concerning the French Blocking

Statute has been presented to the Court.

CONCLUSION

The decision below, like Messerschmitt, is representative of a

line of cases construing the Hague Evidence Convention which, if

permitted to stand, will relegate the Convention to disuse. Certio-

rari should be granted to address important questions of interna-

tional comity which the decision below ignores.

Respectfully submitted,

JOHN W. Forp

LAWRENCE N. MINCH

WILLIAM L. ROBINSON

Littick McHose & CHARLES

Two Embarcadero Center

San Francisco, CA 94111

(415) 984-8200

Attorneys for Petitioners

'* Brief in Opposition at 15.