# Reply Brief — Société Nationale Industrielle Aérospatiale v. United States District Court > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0112%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1168 ## Text —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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0112%3A04. Public record. Not legal advice.