Petition for Writ of Certiorari — Rutgerswerke AG v. Bettis

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a, ae Supreme Court, U.S.

\) FILED

94 865 NOV 1 4 1994

No.

Bos ee es a 7) es

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

RUTGERSWERKE AG,

9 Petitioner,

KAY BETTIS, e¢ al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

RICHARD M. FRANKLIN

Counsel of Record

ROBERT L. BERNER, JR.

DAVID P. HACKETT

Baker & McKenzie

One Prudential Plaza

Chicago, IL 60601

(312) 861-8000

Counsel for Petitioner

November 14, 1994

QUESTION PRESENTED

The majority opinion of Societe National Industrielle

Aerospatiale v. United States District Court, 482 U.S. 522°

(1987), held that the Hague Evidence Convention is an op-

tional method for the taking of discovery from foreign liti-

gants, whose use is to be determined by the lower courts on

the basis of a case-by-case analysis. Petitioner is a foreign

corporation and a defendant in this environmental class ac-

tion litigation. The following is the question presented as a

result of the denial of Petitioner’s motion to require that all

discovery from it be taken pursuant to the Hague Evidence

Convention:

Whether this Court should reconsider and overrule

the Aerospatiale majority opinion and thereby re-

quire that all discovery from Petitioner be taken

pursuant to the Hague Evidence Convention for the

reasons that:

(i) The Aerospatiale majority opinion is regarded almost

universally as unsound in principle; and

(ii) The Aerospatiale majority opinion has been proven com-

pletely unworkable in practice by the lower court deci-

sions, which either have followed the minority opinion

or have been unable to perform the comity analysis the

majority opinion requires.

nee |

LIST OF PARTIES

The following were parties to the proceeding in the

court of appeals and in the district court:

1. Plaintiffs, Kay Bettis, Beverly Rittiger, William F.

Slanker, Michael J. Pidgeon and Mary B. Walters, on

their own behalf and on behalf of a class as certified by

the district court consisting of all persons and entities

(other than defendants and their affiliates) who lived on

and/or owned real property abutting a plant site in

Salem, Ohio and/or abutting the Middle Fork of Little

Beaver Creek between the plant site and a point near

Elkton, Ohio during the period of February 2, 1986 to

February 2, 1990. -

Defendant, Riitgerswerke AG.!

Defendant, Ruetgers-Nease Corporation.

Defendant, Nease Chemical Co., Inc.

Defendant, Crane Company.

Third-party defendant, Occidental Chemical Corporation.

> FF BS

1 A Rule 29.1 listing of all parent companies and subsidiaries (except

wholly owned subsidiaries) of Rutgerswerke AG is set forth in Appendix D,

infra, pp. D-1-D-2.

iii

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED................... i

EEE ii

TABLE OF AUTHORITIES .................. Vv

SE ne cece ec et eeees 1

EEE ee 2

a 2

STATEMENT ..... eS aS Se a 2

1. Plaintiffs’ claims against Rutgerswerke...... 2

2. Plaintiffs’ discovery against Rutgerswerke.... 3

3. Ritgerswerke’s motion to require plaintiffs to

take their discovery pursuant to the Hague

er 4

REASONS FOR GRANTING THE PETITION ... 5

1. The holding of Aerospatiale is unsound in

ee ee cae ke eee eee 6

(a) The majority opinion’s textual analysis. . 10

(b) The majority opinion’s analysis of the

Fe 13

nations and the international community 14

(d) The 1989 Special Commission Report ... 17

(e) The proposed amendments to the

Federal Rules of Civil Procedure ....... \ 18

2. The holding of Aerospatiale is unworkable in _

IS a 20

(a) The post-Aerospatiale decisions which

have ordered Hague Evidence

Convention discovery................ 22

(b) The post-Aerospatiale decisions which

have

3. Summary

APPENDIX C

APPENDIX D

ordered federal rules discovery ....

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TABLE OF AUTHORITIES

CASES:

Benton Graphics v. Uddeholm Corp., 118 F-R.D.

I ing cele es. wkd ko ow 6 ek «

Continental T:V., Inc. v. GTE Sylvania, Inc., 433

Mg te kt

Doster v. Carl Schenk A.G., 141 ER.D. 50

I ee a eas

Erbach Finance Corp. v. Royal Bank of Canada,

199 A.D.2d 87, 605 N.Y.S.2d 52 (1st Dept. 1993).

Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985) ..............

Haynes v. Kleinwefers, 119 FR.D. 335 (E.D.N_Y.

NE ia bead rash 60 oe Teed ES KK ow ees

Hudson v. Hermann Pfauter GmbH & Co., 117

pe Bs Fe Dk a ys ee en

In re Asbestos Litigation, 623 A.2d 546 (Del.

I ee we didn ae ee 5

In re Bedford Computer Corp., 114 B.R.2 (Bankr.

Se ik Bik ali ie A ee REA

In re Perrier Bottled Water Litigation, 138 F-R.D.

ge ee a

Knight v. Ford Motor Co., 260 N.J. Super. 110,

Pe | re a

Moake v. Source International Corp., 263 N.J.

Super. 455, 623 A.2d 263 (1993) .............

Payne v. Tennessee, 501 U.S. 808 (1991) ........

‘ vi

Republic of Iraq v. First National City Bank, 353

F.2d 47 (2d Cir. 1965), cert. denied, 382 US.

Pee es oe? ee ee

Rich v. Kis California, Inc., 121 FR.D. 254

IRE PRL ae eo eee ag ae

Roberts v. Heim, 130 ER.D. 430 (N.D.Cal. 1990). .

Sandsend Financial Consultants, Ltd. v. Wood,

743 S.W.2d 364 (Tex. App. 1st Dist. 1988) .....

Scarminach v. Goldwell GmbH, 140 Misc.2d 103,

ge ee & Ee ee

Societe Nationale Industrielle Aerospatiale v.

United States District Court, 482 U.S. 522 (1987)

Swit & Co. v. Wickham, 382 U.S. 111 (1965)....

Thomas v. Washington Gas Light Co., 448 US.

Ce ee a ee er

STATUTES/REPORTS/TREATISES:

Comprehensive Environmental Response

Compensation and Liability Act of 1980, 42

EE Se be ee oe dw eed a ERREH Oss O88

Excerpt from the Report of the Judicial

Committee on Rules of Practice and Procedure

September, 1990 reprinted in 134 FR.D. 574 ...

= eS 2 | a ee ee eee

ee Ls 6 ven wie ewe wee Oh enw een

a SE Sc vo vals eae a a ees

Letter from Chief Justice Rehnquist to Speaker

Foley (April 30, 1993, reprinted in 134 FR.D.

EE ee ee ee tee

5-27

5, 7

Vii

Report on the Work of the Special Commission of

April, 1989 on the Operation of the Hague

Evidence Conventions of 15 November 1965 on

the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters and

of 18 March 1970 on the Taking of Evidence

Abroad in Civil or Commercial Matters, 28

The Hague Evidence Convention on the Taking

of Evidence Abroad in Civil or Commercial

Matters, 23 U.S.T. 255, T.I.A.S. No. 7444, 28

ft Eee 6) a

I I os ks ocd e eee veswsweetases

Cok Eee ee ee

28 U.S.C. §1254(1) 0.0... eee eee

ARTICLES:

Allen, Aaron P, The Hague Evidence Convention

and State Courts after Societe Nationale

Industrielle Aerospatiale v. U.S. District Court:

Has the Supreme Court Unveiled a Federal

Right?, 11 Loy. L.A. Int’] & Comp. L. J. 207

ch eel aie eee ee ee de a dea «

Alley, Edwin R., Hague Conference on Private

International Law: 1989 Special Commission

Meeting on the Operation of the Hague Evidence

Convention and the Hague Service Convention, 8

i ee EO a ss ow Ws en bo sce see

Bailey, Stephen R., Depositions and Discovery —

Hague Convention on the Taking of Evidence

Abroad in Civil or Commercial Matters, 54 J.

PS ee

22, 26

Vili

Bermann, George A., Eason-Weinmann Center for

Comparative Law Colloquium: The

Internationalization of Law and Legal Practice:

The Hague Evidence Convention and the

Supreme Court: A Critique of the Aerospatiale

Decision, 63 Tul. L. Rev. 525 (1989) ..........

Black, Stephen F.,, United States Transnational

Discovery: The Rise and Fall of the Hague

Evidence Convention, 40 Int’! & Comp. L. Q.

Oe CE sok Ha cas ok ele ek

Borne & Hoing, Comity and the Lower Courts:

Post-Aerospatiale Applications of the Hague

Evidence Convention, 24 Int’! Law. 392 (1990) ..

Corrado, Mark G., The Supreme Court’s Impact

on Swiss Bank Secrecy: Societe Nationale

Industrielle Aerospatiale v. United States

District Court, 37 Am. U.L. Rev. 827 (1988) ....

Cotter, Mark A., The Hague Evidence

Convention: Selfish U.S. Interpretation

Aggravates Foreign Signatories and Mandates

Changes to Federal Discovery Rules, 6 Fla. J.

SES Ei Ss Tks ba eee ae hs 6s 4

Di Fronzo, Pascal W., The Hague Evidence

Convention in the Aftermath of Societe Nationale

Industrielle Aerospatiale, 12 Hastings Int’] &

Comme. Ta GR File Cee oo hie e hese aes wee

Dwyer, James G. & Yurow, Lois A., Taking

Evidence and Breaking Treaties: Aerospatiale

and the Need for Common Sense, 21 Geo. Wash.

J. Int’l L. & Econ. 439 (1968) .... 2. oa eee

Fields, Lori A., Societe Nationale Industrielle

Aerospatiale v. United States District Court: The

Supreme Court Undermines the Hague Evidence

Convention and Confounds the International

Discovery Process, 22 Loy. L.A. L. Rev. 217

RA Be a ig as ay es 6d a a

Garcia, J. Albert, A Look Behind the Aerospatiale

Curtain, or Why the Hague Evidence Convention

had to be Effectively Nullified, 23 Tex. Int’l L. J.

ee Nr te es a as

Gerber, David J., International Discovery After

Aerospatiale: The Quest for an Analytical

Framework, 82 Am. J. Int’] L. 521 (1989)......

Glennon, Felice A., Taking Evidence Abroad —

The Hague Evidence Convention, 254 Suffolk

ee CO

Griffin, Joseph P & Bravin, Mark N., Beyond

Aerospatiale: A Commentary on Foreign

Discovery Provisions of the Restatement (Third)

and the Proposed Amendments to the Federal

Rules of Civil Procedure, 25 Int’] Law. 331

Se tM ee Stn dhigin go bad dbo we eee «

Groves, J. Erik, Transnational Civil Litigation —

The Hague Evidence Convention, 23 Wake

BP Bs OE Te CD ik kk vec tec c cee.

Kuhn, Patricia Anne, Societe Nationale

Industrielle Aerospatiale: The Supreme Court’s

Misguided Approach to the Hague Evidence

Convention, 69 B.U.L. Rev. 1011 (1989) .......

Lehutsky, Michael P, Hague Convention on

Taking Evidence Abroad — Federal Rules of

Civil Procedure Discovery, 26 Duq. L. Rev. 773

CSR sok a VC ea ae ee se. 13

Martikan, Owen Peter, The Boundaries of the

Hague Evidence Convention: Lower Court

Interest Balancing After the Aerospatiale

Decision, 68 Tex. L. Rev. 1003 (1990) ......... 25

Matthews, James T., The Role of the Hague

Convention for Gathering Evidence Abroad:

Societe Nationale Industrielle Aerospatiale v.

United States District Court for the Southern 11,

District of Iowa, 107 S.Ct. 2542 (1987), 24 Stan. 13-14,

BFR Kas Se Ce a 05s eye ea es a ane 16, 26

Minch, Lawrence H., U.S. Obligations Under the 9, 14,

Hague Evidence Convention: More than Good 16, 22,

Wall?, 22 int'l Law. Gil (IGGB) ... wc ec ceae. 24

Mitchell, Traynham E. Jr., Societe Nationale v.

United States District Court: International

Discovery Under the Hague Evidence

Convention, 62 Tul. L. Rev. 828 (1988) ........ 16, 21

Muse, Diana Lloyd, Discovery in France and the

Hague Convention: The Search for a French 16, 22,

Connection, 64 N.Y.U.L. Rev. 1073 (1989) ...... 26

Plaster, John C., The Hague Evidence

Convention: The Need for Guidance on

Procedures and Resolution of Conflicts in 21-22,

Transnational Discovery, 27 Vand. J. Transnat’! 24,

bs SU Ce seed oh eo he ew es ee 26-27

Roomberg, Mark T., Societe Nationale

Industrielle Aerospatiale v. United States

District Court — The Hague Evidence

Convention on Taking Evidence Abroad: The

“Optional” Treaty?, 3 Temple Int’] & Comp. L.

MB ce I DO a a

Roth, Randall D., Five Years after Aerospatiale:

Rethinking Discovery Abroad in Civil and

Commercial Litigation under the Hague

Evidence Convention and the Federal Rules of

Civil Procedure, 13 U. Pa. J. Int’] Bus. L. 425

GU dai eS C. ck k's ae xa a

Scott, Paul, Extraterritorial Discovery and the

Hague Evidence Convention after Societe

Nationale Industrielle Aerospatiale: An

American Interests Approach to Comity, 13 Yale

Se ee ee

Slomanson, William R., The US Supreme Court’s

Position and the Hague Evidence Convention, 37

Int’! & Comp. L. Q. 391 (1988) ..............

Stein, Joshua O., Subordinating the Hague

Evidence Convention to the Federal Rules of

Civil Procedure: Societe Nationale Industrielle

Aerospatiale v. United States District Court, 21

Conn. L. Rev. 167, (1988) ..................

Waller, Spencer Weber, A Unified Theory of

Transnational Procedure, 26 Cornell L. Rev. 101

SBE. STI DO aa) Sone a

21, 27

13, 25,

16, 27

16, 21,

xii

Weintraub, Russell J., The Need for Awareness of

International Standards when Construing

Multilateral Conventions: The Arbitration,

Evidence and Service Conventions, 28 Tex. Int’!

ba, Ge Gs bay We ae eae; oo

Weis, Joseph F, Jr., The Federal Rules and the

Hague Conventions: Concerns of Conformity and

Comity, 50 U. Pitt. L. Rev. 903 (1989).........

Westin, David & Born, Gary R., Applying the

Aerospatiale Decision in State Court

Proceedings, 26 Colum. J. Transnat’] L. 297

Bye ee ieee re vy rss oe eee eee

Wilks, William L. & Goldberg, Nancy E., The

Unsolved Problem in Taking Evidence Abroad:

T'he Non-Rule of Aerospatiale, 7 Dick. J. Int’l. L.

Sy Ce ie He a a re ew eee es

Wilson, Roger C., The Hague Evidence

Convention in U.S. Court: Aerospatiale and the

Path Not Taken, Societe nationale Industrielle

Aerospatiale v. U.S. District Court for the

Southern District of Iowa, 107 S.Ct. 2542 (1987),

17 Ga. J. Int’] & Comp. L. 591 (1987).........

Woodward, Catherine E., Discovery: Application

of the Hague Evidence Convention in United

States Courts, 29 Harv. Int’! L. J. 160 (1988) ...

9-12,

15, 17,

9, 11,

16, 21

10, 16

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

RUTGERSWERKE AG,

v. Petitioner,

KAY BETTIS, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Riitgerswerke AG (‘‘Riitgerswerke’’) respectfully peti-

tions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Sixth Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

pp. A-1—A-3) denying Riitgerswerke’s petition for a writ of

mandamus and the opinions of the district court (App. B,

infra, pp. B-1-B-6) are unreported.

JURISDICTION

The court of appeals entered its judgment on August 15,

1994 (App. A, infra, pp. A-1—-A-3). The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

TREATY INVOLVED

The Hague Evidence Convention on the Taking of Evi-

dence Abroad in Civil or Commercial Matters (including the

declarations thereto of the Federal Republic of Germany)

opened for signature March 18, 1970, 23 U.S.T. 255, T.I.A.S.

No. 7444, 28 U.S.C.A. § 1781 at pp. 412-45 (1994) (the

‘“‘Hague Evidence Convention’’), is set forth in Appendix C,

infra, pp. C-1-C-25.

STATEMENT

1. Plaintiffs’ claims against Rutgerswerke.

Rutgerswerke is a defendant in this environmental class

action brought in the United States District Court for the

Northern District of Ohio. Plaintiffs, Kay Bettis et al., pur-

port to represent a class of persons living on and/or owning

real property abutting a plant site in Salem, Ohio (the ‘‘Sa-

lem Site’’) or the Middle Fork of Little Beaver Creek between

the Salem Site and a point near Elkton, Ohio. The bases for

federal jurisdiction in the district court are 28 U.S.C. § 1331,

in that plaintiffs have asserted a claim under the Compre-

hensive Environmental Response Compensation and Liabil-

ity Act of 1980, 42 U.S.C. § 9601 et seg. (“CERCLA’’), and 28

U.S.C. § 1332, in that plaintiffs assert that the matter in

controversy exceeds the sum or value of $50,000, exclusive of

interest and costs, and is between citizens of different states.

Between 1961 and 1973, defendant, Nease Chemical

Co., Inc. (‘‘Nease’’), operated a chemical plant on the Salem

Site. The chemical plant was closed in 1973, and no business

operations have been conducted on the Salem Site since that

year. In 1977, defendant, Ruetgers-Nease Corporation

(‘“‘Ruetgers-Nease’’), became the owner of Nease’s assets in-

cluding the non-operating Salem Site. Riitgerswerke, a Ger-

man stock corporation with its principal place of business in

Frankfurt, Germany, has been the corporate parent of

Ruetgers-Nease since 1977.

Plaintiffs claim under their Second Amended and Sup-

plemental Complaint that certain hazardous and toxic chem-

ical substances have migrated into the Middle Fork of Little

Beaver Creek from the Salem Site. Plaintiffs plead causes of

action under state law and CERCLA and seek the recovery of

$100 million in compensatory damages from Riitgerswerke.

The sole basis for plaintiffs’ claim against Rutgerswerke is

their allegation that Riitgerswerke, as Ruetgers-Nease’s cor-

porate parent, is liable for Ruetgers-Nease’s and Nease’s

alleged conduct.

2. Plaintiffs’ discovery against Rutgerswerke.

Plaintiffs have indicated that they wish to take discov-

ery from Riitgerswerke relating to issues of in personam

jurisdiction,” parental liability and successor liability. Plain-

tiffs have served several sets of interrogatories and docu-

ment production requests upon Riitgerswerke. They also

2 Riitgerswerke’s initial response to plaintiffs’ First Amended and Sup-

plemental Complaint was to file a motion to dismiss under Fed. R. Civ. P.

12(b)(2) for lack of in personam jurisdiction. Although it was undisputed

that Riitgerswerke has had no direct contacts with the forum state of Ohio,

the district court’s May 19, 1992 order found that plaintiffs had made a

(footnote continues)

have served a notice of deposition for a former member of

Riitgerswerke’s managing board and have indicated that

they intend to take several additional depositions of Riitger-

swerke personnel. All of Ritgerswerke’s employees who

would answer the interrogatories and attend the depositions

are located in Germany, as are all of Riitgerswerke’s docu-

ments which would be responsive to the document produc-

tion requests.

3. Rutgerswerke’s motion to require plaintiffs to take

their discovery pursuant to the Hague Evidence

Convention.

On June 29, 1992; Riitgerswerke filed a motion for pro-

tective order which sought that any discovery from Riitger-

swerke be taken pursuant to the Hague Evidence

Convention. The Hague Evidence Convention, which has

been ratified by both the United States and Germany, pro-

vides procedures by which plaintiffs can obtain evidence

from Rutgerswerke in Germany. Under Chapter I of the

Hague Evidence Convention, the district court would submit

a letter of request containing the requested discovery to the

German authorities, who would forward the request to a

German court with jurisdiction over Riitgerswerke. The Ger-

man court would then supervise the taking of evidence from

Rutgerswerke. Chapter II of the Hague Evidence Convention

(footnote continued)

prima facie showing of an alter-ego relationship between Riitgerswerke

and Ruetgers-Nease which was sufficient to deny the motion at that stage

in the proceeding. The district court noted that “‘it remains unclear at this

time whether the control asserted rises to a level at which Ruetgers-Nease

may be considered a mere shell, agent or alter-ego of Riitgerswerke” and

that plaintiffs must make this showing by the preponderance of evidence

at trial.

provides three alternative procedures for the taking of evi-

dence abroad. These are the taking of evidence by diplomatic

officers, by counsular agents and by commissioners.

On May 6, 1994, the magistrate judge denied Riitger-

swerke’s motion for protective order (App. B, infra,

pp. B-1-—B-4). On May 19, 1994, Riitgerswerke filed an appeal

to the district judge from the magistrate judge’s ruling. On

June 22, 1994, the district judge affirmed the magistrate

judge’s decision and denied Riitgerswerke’s motion for pro-

tective order (App. B, infra, pp. B-5-B-6). On July 6, 1994,

Rutgerswerke filed a petition with the court of appeals seek-

ing a writ of mandamus directing the district court to require

plaintiffs to use the procedures specified in the Hague Evi-

dence Convention for the discovery to be taken from Riitger-

swerke. On August 15, 1994, the court of appeals entered its

order denying Rtitgerswerke’s petition for a writ of manda-

mus (App. A, infra, pp. A-1—A-3).

REASONS FOR GRANTING THE PETITION

This Court has not hesitated to reconsider and over-

rule those of its decisions which have proven to be unsound

in principle and unworkable in practice. See Garcia v. San

Antonio Metropolitan Transit Authority, 469 U.S. 528, 546-47

(1985). See also Payne v. Tennessee, 501 U.S. 808, 827 (1991);

Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965). As demon-

strated below, the holding of Societe Nationale Industrielle

Aerospatiale v. United States District Court, 482 U.S. 522

(1987), that the Hague Evidence Convention is an optional

method for the taking of discovery from foreign litigants

whose use is to be determined by the lower courts on a case-

by-case basis, is regarded almost universally as unsound in

principle and has been proven to be unworkable in practice

by the lower court decisions, which either have followed the

minority opinions analysis or have been unable to perform

the comity analysis the majority opinion requires.

1. The holding of Aerospatiale is unsound in principle.

The majority opinion in Aerospatiale, joined in by five

justices,® held that the Hague Evidence Convention provides

optional discovery procedures to be used at the discretion of

the district court after scrutiny in each case of the particular

facts, the sovereign interests and the likelihood that resort to

those procedures will prove effective. Id. at 544. The majority

opinion indicated that due respect should be given for any

special problem confronted by the foreign litigant on account

of its nationality or the location of its operations and for any

sovereign interests expressed by a foreign state, but declined

to “‘articulate specific rules to guide this delicate task of

adjudication’’. Id. at 546.

The Aerospatiale minority opinion, joined in by four

justices,‘ criticized the majority for ignoring the importance

of the Hague Evidence Convention by relegating it to an

optional status, noted that experience indicated that a case-

by-case comity analysis will be performed inadequately and

the Convention will be invoked infrequently and predicted

that the lower courts will resort unnecessarily to federal

rules discovery “in a raw exercise of their jurisdictional

power to the detriment of the United States’ national and

international interests.” Id. at 547. The minority opinion

3 Stevens, J. delivered the majority opinion in which Rehnquist, C.J. and

White, Powell and Scalia, JJ., joined.

4 Blackmun, J. filed the minority opinion in which Brennan, Marshall

and O’Connor, JJ. joined.

particularly disagreed with the majority opinion’s case-by-

case inquiry for determining whether to use the Hague Evi-

dence Convention procedures and with its failure to provide .

the lower courts with any meaningful guidance for carrying

out that inquiry. The minority opinion instead would have

applied a general presumption that courts should resort first

to the Hague Evidence Convention procedures, and that an

individualized analysis of the circumstances of a particular

case is appropriate only when it appears it would be futile to

employ the Hague Evidence Convention or when its proce-

dures prove to be unhelpful. Jd.

Aerospatiale was a 5-4 decision with a minority opinion

that sharply criticized the majority opinion’s holding. In de-

ciding to reconsider and reverse its precedent, this Court

repeatedly has noted that a narrow margin of decision and a

vigorous dissent is a factor. See Payne v. Tennessee, supra at

828-29, (overruling prior authority “‘decided by the narrow-

est of margins, over spirited dissents challenging the basic

underpinnings of those decisions.””); Garcia v. San Antonio

Metropolitan Transit Authority, supra at 530 (overruling

prior authority decided “‘by a sharply divided vote’’). Thomas

v. Washington Gas Light Co., 448 U.S. 261, 273 (1980) (over-

ruling prior authority decided “by only the slimmest

majority’’).

This Court also has noted criticism by commentators as

a factor leading to its reconsideration of its precedent. See

Continental T:V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36,

47-48 (1977) (overruling precedent where “[t]he great

weight of scholarly opinion has been critical of the deci-

sion... ”’); Swift & Co. v. Wickham, supra at 124 (overrul-

ing precedent ‘“‘uniformly criticized by commentators’’).

Aerospatiale has caused a great deal of attention in the schol-

arly journals which almost uniformly criticize the majority

opinion. Indeed, this petition cites more than 30 commenta-

ries that challenge the correctness of the Aerospatiale major-

ity opinion.

For example, Professor Bermann, in critiquing the Aer-

ospatiale decision, has stated flatly that “‘the Supreme Court

seriously erred on the merits . . . ’’ George A. Bermann,

Eason-Weinmann Center for Comparative Law Colloquium:

The Internationalization of Law and Legal Practice: The

Hague Evidence Convention and the Supreme Court: A Cri-

tique of the Aerospatiale Decision, 63 Tul. L. Rev. 525, 529

(1989). This criticism has been shared by other academics‘,

by a distinguished federal circuit judge®, by practitioners’

and by student commentators.

5 E.g., Russell J. Weintraub, The Need for Awareness of International

Standards when Construing Multilateral Conventions: The Arbitration,

Evidence and Service Conventions, 28 Tex. Int’] L. J. 441, 460-61 (1993)

(“Comments on Aerospatiale have almost uniformly condemmed the opin-

ion as inconsistent with America’s obligations under the Evidence Con-

vention and offensive to other signatories. I, too, regret Aerospatiale’s

xenophobia and think that the proper approach is Justice Black-

mun’s ... ”’); William L. Wilks & Nancy E. Goldberg, The Unsolved

Problem in Taking Evidence Abroad: The Non-Rule of Aerospatiale, 7

Dick. J. Int’l. L. 65, 92 (1988) (‘‘the Supreme Court was incorrect in its

reasoning in Aerospatiale.’’).

6 Joseph F. Weis, Jr., The Federal Rules and the Hague Conventions:

Concerns of Conformity and Comity, 50 U. Pitt. L. Rev. 903, 931 (1989)

(“The arguments mustered against giving priority to Convention proce-

dures are not persuasive when balanced with the overriding interests,

national and international, in more effective implementation of the Evi-

dence Convention.”’)

7 E.g., James G. Dwyer & Lois A. Yurow, Taking Evidence and Breaking

Treaties: Aerospatiale and the Need for Common Sense, 21 Geo. Wash. J.

Int’! L. & Econ. 439, 477 (1988) (“the Supreme Court’s premises were

erroneous”’); Lawrence H. Minch, U.S. Obligations Under the Hague Evi-

dence Convention: More than Good Will?, 22 Int’] Law. 511, 516 (1988)

(“The majority opinion erroneously treats article 27 as evidence of the

parties’ intent to establish merely optional procedures. This interpreta-

tion reduces the Convention to a nullity.”’).

8 E.g., Pascal W. Di Fronzo, The Hague Evidence Convention in the

Aftermath of Societe Nationale Industrielle Aerospatiale, 12 Hastings

Int’! & Comp. L. Rev. 735, 747 (1989) (“the majority conclusion that the

application of Evidence Convention procedures is optional’ is at odds with

the Evidence Convention’s language and negotiation history.’’); Lori A.

Fields, Societe Nationale Industrielle Aerospatiale v. United States District

Court: The Supreme Court Undermines the Hague Evidence Convention

and Confounds the International Discovery Process, 22 Loy. L.A. L. Rev.

217, 264 (1988) (“The Court’s concern over reaffirming the sovereignty of

our judicial system clouded the crucial issues in the case, and resulted in

(footnote continues)

The specific flaws in the Aerospatiale majority opinion

that the commentators repeatedly have noted include the

following:

(a) The majority opinion’s textual analysis.

In interpreting the text of the Hague Evidence Conven-

tion, the majority opinion relies on the use of the word

‘“‘may’’, rather than the word “‘shall’’, in Articles 1, 15, 16

and 17. Professor Weintraub states that this “‘focus on the

Convention’s use of the word ‘may’ rather than ‘shall’ to

buttress the conclusion that use of the Convention is op-

tional, is unconvincing.”’ Weintraub, supra at 457. He notes

that the term “may” appears in each of the four articles

describing the four different methods of obtaining evidence

under the Convention and that: “‘Given these four alternate

methods of obtaining evidence, it would make no literal

sense to state that any of them ‘shall’ be used.” Jd. at 457-58.

(footnote continued)

an inaccurate analysis of our obligations under the Hague Evidence Con-

vention.”’); J. Albert Garcia, A Look Behind the Aerospatiale Curtain, or

Why the Hague Evidence Convention had to be Effectively Nullified, 23 Tex.

Int’! L. J. 269, 274 (‘‘As it is written, the Aerospatiale opinion is fundamen-

tally unconvincing.”’); Patricia Ann Kuhn, Societe Nationale Industrielle

Aerospatiale: The Supreme Court’s Misguided Approach to the Hague Evi-

dence Convention, 69 B.U.L. Rev. 1011, 1013 (1989) (“‘the Court incorrectly

decided the case’’); Catherine E. Woodward, Discovery: Application of the

Hague Evidence Convention in United States Courts, 29 Harv. Int’! L. J.

160, (1988) (‘‘the Supreme Court trivializes the significance of this impor-

tant multilateral treaty and risks offending foreign signatories to the

detriment of international relations.”’).

Professor Bermann agrees: ‘‘the Court reads too much into

the use of the term ‘may’ in the Evidence Convention.”’;

Bermann, supra at 531.9

The Aerospatiale majority opinion also relied upon Arti-

cles 23 and 27 of the Hague Evidence Convention to buttress

its conclusion that it is a permissive supplement, not a pre-

emptive replacement, for federal rules discovery. 482 U.S. at

536-38. As one commentary has stated with regard to the

majority opinion’s treatment of these provisions: ‘Articles

23 and 27 have been grossly misunderstood.” Wilkes &

Goldberg, supra at 91.

Article 23 authorizes a contracting state to declare that

it will not execute a letter of request in aid of pretrial discov-

ery of documents in a common-law country. Professor Wein-

traub notes that the majority opinion’s ‘treatment of

Article 23 is especially problematic.” He criticizes the major-

ity opinion’s suggestion that a signatory nation’s use of this

article unilaterally abrogates the Hague Evidence Conven-

tion’s procedures as ignoring that this action is specifically

authorized by the Hague Evidence Convention procedures

9 See also Di Fronzo, supra at 748 “‘[the majority opinion] incorrectly

assumes that use of the word ‘may’ signifies the optional nature of the

Evidence Convention.”’); Fields, supra at 269 (‘‘Since the Convention pro-

vides three alternative methods that may be used to gather evidence

abroad, the use of the term ‘may’ in each alternative provision seems

entirely appropriate.”’); James T. Matthews, The Role of the Hague Con-

vention for Gathering Evidence Abroad: Societe Nationale Industrielle Aer-

ospatiale v. United States District Court for the Southern District of Iowa,

107 S.Ct. 2542 (1987), 24 Stan. J. Int’l. L. 309, 319 (1987) (the Court’s

analysis of the Evidence Convention’s ‘permissive’ language does not ade-

quately support its holding that the Convention’s procedures are op-

tional.’’); Wilks & Goldberg, supra at 91 (“the permissive language only

reflects the alternative methods provided by the Convention’’).

and as overlooking that the Hague Evidence Convention it-

self is the product of negotiation and compromise. Wein-

traub, supra at 458. Another commentator has noted that

the majority opinion is mistaken on two counts with regard

to Article 23: First, this article does not preclude recourse to

all pre-trial discovery, but is limited by its term to the pretrial

discovery of documents; and second, the majority errs when

it states it would be anamolous for common law contracting

parties to agree to Article 23, as the negotiating history dem-

onstrates that it was the United Kingdom, a common law

country, which insisted upon the insertion of this article.

Di Fronzo, supra at 749-50.

Article 27 provides that the Hague Evidence Conven-

tion does not prevent a contracting state from (a) declaring

that letters of request may be transmitted to its judicial

authorities through other channels, (b) permitting any act

provided for to be performed upon less restrictive conditions

or (c) permitting other methods of taking evidence. Professor

Bermann explains that Article 27 means that a state may use

more liberal means to assist in the taking of evidence on its

territory in aid of foreign litigation, and that the Hague

Evidence Convention sets only a minimum standard of inter-

national cooperation, but that: ‘“‘For an advocate to marshal

an argument based on article 27 in support of the nonex-

clusivity thesis is understandable; for the Supreme Court to

rely upon it, however, is not.”” Bermann, supra at 532.}°

10 See also Di Fronzo, supra at 748-49 (‘“‘The majority interpreted Arti-

cle 27 as proving that Evidence Convention procedures were optional. This

is incorrect.’’); Fields, supra at 235 (‘‘The history of the negotiation and

ratification of Article 27 shows that the provision was directed only at

states of execution to ensure that executing states could permit evidence to

be taken in accordance with less restrictive internal procedures other than

(footnote continues)

(b) The majority opinion’s analysis of the negotiation

history.

As noted by one commentator: ‘“‘The majority opinion

ignores the historical grounds which motivated the United

States to be the primary advocate of the Hague Evidence

Convention.” Di Fronzo, supra at 747. This commentator

further states that:

Given the unsatisfactory nature of transnational

discovery before the negotiation of the Evidence

Convention, it is incomprehensible that the nations

involved would agree on procedures that could be

completely ignored by a contracting state gy hl

ing evidence from another contracting state. How-

ever, this is exactly what the majority concluded by

stating that the Evidence Convention procedures

are ‘optional’.

Id. at 748. Other commentators agree that the negotiation

history of the Hague Evidence Convention does not support

the majority opinion’s view that it is an optional discovery

device.}!

(footnote continued)

those provided for in the Convention.”’) (original emphasis); Michael P

Lehutsky, Hague Convention on Taking Evidence Abroad — Federal

Rules of Civil Procedure Discovery, 26 Duq. L. Rev. 773, 788 (1988) (‘‘The

history of the Hague Convention provides strong evidence to suggest that

[the majority opinion’s] interpretation [of Article 27] is incorrect’’); Mat-

thews, supra at 316 (“the Court clearly misinterpreted article 27, as a

review of the Convention’s history reveals’’); Randall D. Roth, Five Years

after Aerospatiale: Rethinking Discovery Abroad in Civil and Commercial

Litigation under the Hague Evidence Convention and the Federal Rules of

Civil Procedure, 13 U. Pa. J. Int’l Bus. L. 425, 446 (1992) (“that the plain

language of Article 27 permits nations to use their own, more liberal

procedures of discovery instead of the Convention — clearly misinterprets

the Convention.”’).

!! See also Fields, supra at 265 (‘Although the majority purported to

consider the Convention’s negotiating history as well as the practical

(footnote continues)

international community.

Foreign signatory governments who have made their

positions known regarding the applicability of the Hague

Evidence Convention procedures “prefer either first-use of

the Convention or mandatory and exclusive use of the Con-

vention procedures.”’ Mark A. Cotter, The Hague Evidence

Convention: Selfish U.S. Interpretation Aggravates Foreign

Signatories and Mandates Changes to Federal Discovery

Rules, 6 Fla. J. Int’] L. 233, 247 (1991).?2

(footnote continued)

construction adopted by the parties, there is a conspicuous absence of any

thoughtful examination of either factor.’’); Kuhn, supra at 1036 (‘Further

analysis of the Evidence Convention’s structure and negotiating history,

however, strongly supports the view that the Convention’s procedures are

mandatory.”’); Matthews, supra at 319 (‘‘consideration of the other Con-

tracting States’ negotiating goals indicates that, at a minimum, the agree-

ment was intended to establish procedures of first resort.””); Minch, supra

at 516 (‘‘[the majority opinion’s} construction also ignores the Conven-

tion’s history.”’). :

12 See also Di Fronzo, supra at 751 (“It is evident from the amici briefs

of [other signatory nations] that Evidence Convention procedures were

intended to be minimum procedures to be applied at least as a first resort,

upon which international judicial cooperation was to be improved.’’);

Minch, supra at 519 (‘‘France and Germany (and probably other civil law

nations who did not participate in the Aerospatiale case) regard the Con-

vention’s procedures as the mandatory and exclusive means by which U.S.

civil litigants may seek evidence located on their soil.”’).

The commentators also have noted the adverse effect

the Aerospatiale decision is having on our relations with

other countries and our standing in the international com- |

munity. As Professor Weintraub has stated:

It is one thing, however, to insist on protection of

important national interests, and quite another to

give offense to friendly foreign countries when the

objective sought could be reached through less con-

frontational methods. Aerospatiale is an unfortu-

nate example of this latter kind of shortsighted

parochialism.

Weintraub, supra at 477. Professor Bermann likewise has

stated that:

The fact remains that American courts would actu-

ally be aided in making Bro r claims for coopera-

tion from those in control of evidence abroad if the

courts adopted a more gracious, indeed more hon-

est, reception of the Convention, than the Supreme

Court has accorded it. Both by its substance and its

rhetoric, the estan gpmmonane ruling unfortunately

misses an important opportunity to promote the

spirit of accomodation essential to the internation-

ization of law and legal practice.

Bermann, supra at 552.13

'3 See also Di Fronzo, supra at 751 (“The majority decision in Aerospa-

tiale gives little weight to the danger of international confrontation and

the importance of judicial cooperation.””); Dwyer & Yurow, stpra at 477

(“The parochial and arbitrary decisions that follow Aerospatiale are likely

to heighten objections from foreign states regarding U.S. treatment of

foreign nationals.”’); Fields, supra at 321-22 (“International judicial coop-

eration is likely to be adversely affected by the Court’s decision.’’); Felice

A. Glennon, Taking Evidence Abroad — The Hague Evidence Convention,

254 Suffolk Transnat’l L. J. 253, 262-63 (1988) (“the Court’s decision

ignored the interests of foreign states and the importance of furthering

transnational cooperation.”; J. Erik Groves, Transnational Civil Litiga-

tion — The Hague Evidence Convention, 23 Wake Forest L. Rev. 371, 398

(footnote continues)

(d) The 1989 Special Commission Report.

In the wake of the Aerospatiale decision, the Hague

Conference on Private International Law convened in April,

(footnote continued)

(1988) (‘‘ . . . Aerospatiale will stand as an affront to the other con-

tracting States.’’); Kuhn, supra at 1048 (“The expansion of American

business and industry will hardly be encouraged if, notwithstanding sol-

emn contracts, we insist on a parochial concept that all disputes must be

resolved under our laws and in our courts.’’); Matthews, supra at 319-20

(‘“‘the Court’s decision may provoke retaliation by foreign governments in

the form of new restrictions on U.S. discovery.’”’); Minch, supra at 527

(‘increased friction with our principal European trading partners over

U.S. demands for documents and information located abroad appears inev-

itable.’’); Traynham E. Mitchell, Jr., Societe Nationale v. United States

District Court: International Discovery Under the Hague Evidence Conven-

tion, 62 Tul. L. Rev. 828, 834 (1988) (‘‘the majority’s relegation of the

Convention to an optional procedure will only exacerbate the existing

tensions between common and civil law systems and may destroy any

incentive for civil law countries to accomodate what they perceive as intru-

sive American discovery procedures.’’); Diana Lloyd Muse, Discovery in

France and the Hague Convention: The Search for a French Connection, 64

N.Y.U.L. Rev. 1073, 1115 (1989) (“If American courts persist in ignoring

the reasonable diplomatic solution the Hague Convention represents, they

will continue to erode established notions of international comity, thereby

unnecessarily defeating the express purpose of the Hague Convention to

alleviate such conflicts.”’); William R. Slomanson, The US Supreme Court’s

Position and the Hague Evidence Convention, 37 Int’] & Comp. L. Q. 391,

396 (1988) (‘‘Construing this treaty as only one of several international

discovery guidelines will further isolate the United States.’’); Joshua O.

Stein, Subordinating the Hague Evidence Convention to the Federal

Rules of Civil Procedure: Societe Nationale Industrielle Aerospatiale v.

United States District Court, 21 Conn. L. Rev. 167, 195 (1988) (‘‘This

decision will inevitably result in accumulated resentment and decreased

cooperation on the part of signatory nations that find American discovery

procedures offensive.””); Wilks & Goldberg, supra at 91 (“‘the Court seems

to overlook the overriding national interest in promoting and maintaining

international harmony, in international legal cooperation as well as other

areas’’); Woodward, supra at 160 (“the Supreme Court . . . risks offend-

ing foreign signatories to the detriment of international relations.”’).

1989 a “Special Commission” on the operation of the Hague

Service Convention and the Hague Evidence Convention.

See Report on the Work of the Special Commission of April,

1989 on the Operation of the Hague Conventions of 15 No-

vember 1965 on the Service Abroad of Judicial and Extraju-

dicial Documents in Civil or Commercial Matters and of 18

March 1970 on the Taking of Evidence Abroad in Civil or

Commercial Matters, 28 I.L.M. 1556 (1989) (the “Special

Commission Report”). The 22 member states of the Hague

Conference (including the United States), as well as diverse

international organizations, sent representatives to the Spe-

cial Commission. Id.

The Special Commission Report states that “‘[the Aeros-

patiale] question gave rise to the most extensive discussion of

the . . . meeting.” Jd. at 17. As Professor Weintraub has

noted, “One of the report’s ‘conclusions’ . . . unqualifiedly

disapproves of Aerospatiale’s majority opinion . . . ’’ Wein-

traub, supra at 462. That conclusion states that:

[With] regard to the object of the Convention, the

Commission thought that in all contracting states,

whatever their views as to its exclusive application,

priory should be — to the procedures offered by

he Convention when evidence located abroad is be-

ing sought.

Special Commission Report, supra at 27.14

The Special Commission Report provides further evi-

dence that the Aerospatiale holding runs counter to the uni-

versal view held outside the United States. Indeed, one U.S.

'4 See also Edwin R. Alley, Hague Conference on Private International

Law: 1989 Special Commission Meeting on the Operation of the Hague

Evidence Convention and the Hague Service Convention, 8 B. U. Int’! L. J.

187, 189-92.

court has cited the Special Commission Report as one reason

mandating more liberal use of the Hague Evidence Conven-

tion. Knight v. Ford Motor Co., 260 N.J. Super. 110, 120, 615

A.2d 297, 301 (1992).

(e) The proposed amendments to the Federal Rules of

Civil Procedure.

Shortly after the Aerospatiale decision, the Judicial

Conference Advisory Committee on Rules of Practice and

Procedure proposed amendments to Fed. R. Civ. P 26 which

‘“‘would create a preference for internationally agreed meth-

ods of discovery when such methods are available’ and to

Fed. R. Civ. P 28 which would “conform the rule to the

[Hague Evidence Convention’’]. Excerpt from the Report of

the Judicial Conference Committee on Rules of Practice and

Procedure September, 1990 reprinted in 134 F-R.D. 574, 575.

These were amendments which ‘would, in effect, overrule

Aerospatiale.’’ Joseph P. Griffin & Mark N. Bravin, Beyond

Aerospatiale: A Commentary on Foreign Discovery Provi-

sions of the Restatement (Third) and the Proposed Amend-

ments to the Federal Rules of Civil Procedure, 25 Int’! Law.

331, 341 (1991). This effort provides further evidence of the

general dissatisfaction with the Aerospatiale holding.

This Court decided not to transmit the amendments to

Fed. R. Civ. P 26 and 28 to Congress. See letter from Chief

Justice Rehnquist to Speaker Foley (April 30, 1991, reprinted

in 134 ER.D. 526). This decision was perspicacious, as an

amendment to the Federal Rules of Civil Procedure cannot

15 See also Cotter, supra at 248-51, Randall D. Roth, Five Years after

Aerospatiale: Rethinking Discovery Abroad in Civil and Commercial Liti-

gation Under the Hague Evidence Convention and the Federal Rules of

Civil Procedure, 13 U. Pa. J. Int’] Bus. L. 425, 451-70 (1992); Weintraub,

supra at 462-64.

. fe ees eee ee ok ee Ee Le Se he ee meg eee |

fully overrule Aerospatiale’s effect. Because Aerospatiale in-

terprets an international treaty, its holding is fully binding

upon the state, as well as the federal, courts. For example,

the Texas Court of Appeals has held that because the Su-

preme Court’s interpretation of the Hague Evidence Con-

vention in Aerospatiale binds it, it could no longer follow the

first resort rule. Sandsend Financial Consultants, Ltd. v.

Wood, 743 S.W.2d 364, 366 (Tex. App. Ist Dist. 1988).16

Amending the Federal Rules of Civil Procedure could

overrule the Aerospatiale decision as applied in the federal

courts, but the decision would continue to bind the state

courts. As Judge Friendly made clear in the context of the act

of state doctrine, if the United States is to speak with one

voice on matters affecting foreign relations, federal law must

set the standards applicable throughout the United States:

It would be baffling if a foreign act of state intended

to affect property in the United States were ignored

on one side of the Hudson but respected on the

other . . . The required uniformity can only be se-

cured by recognizing the expansive reach of the

principle . . . that all questions relating to an act

of state are questions of federal law, to be deter-

mined ultimately, if need be, by the Supreme Court

of the United States.

'© See also Aaron P. Allen, The Hague Evidence Convention and State

Courts after Societe Nationale Industrielle Aerospatiale v. U.S. District

Court: Has the Supreme Court Unveiled a Federal Right?, 11 Loy. L.A.

Int’] & Comp. L. J. 207, 221 (1989) (‘Since the decision in [Aerospatiale]

was based on a federal treaty, the states’ independent relations with for-

eign sovereigns are necessarily circumscribed by the Court’s interpreta-

tion of that treaty”); David Westin & Gary R. Born, Applying the

Aerospatiale Decision in State Court Proceedings, 26 Colum. J. Transnat’]

L. 297, 306 (1988) (‘‘state courts are bound to apply a comity analysis at

least as deferential to foreign interests as that required of federal courts by

Aerospatiale.’’).

Republic of Iraq v. First National City Bank, 353 F2d 47,

50-51 (2d Cir. 1965), cert denied, 382 U.S. 1027 (1966). This

Court can achieve a uniform modification of its holding in

Aerospatiale, applicable to both the federal and state courts,

only by reconsidering and overruling such holding; it cannot

do so by amending the Federal Rules of Civil Procedure.!”

2. The holding of Aerospatiale is unworkable in

practice.

The Aerospatiale majority opinion requires the district

courts to determine, on a case-by-case basis, whether the

Hague Evidence Convention or the federal rules are more

likely to protect the litigants’ interests while achieving the

desired discovery results. There is no doubt that this ad hoc

balancing test has proved to be completely unworkable in

practice. As one commentary has stated: ‘“‘The majority opin-

ion in Aerospatiale creates an undesirable and unworkable

framework in which lower courts must make determinations

about the appropriate use of the [Hague Evidence Conven-

tion].”’ Griffin & Bravin, supra at 349. Many other commen-

tators, upon review of the post-Aerospatiale case law,

likewise have concluded that the majority opinion’s holding

is unworkable in practice.!®

'7 This petition provides the Court with its first opportunity to recon-

sider Aerospatiale since the proposed amendments to the Federal Rules of

Civil Procedure.

18 See Born & Hoing, Comity and the Lower Courts: Post-Aerospatiale

Applications of the Hague Eviderice Convention, 24 Int’] Law. 392, 394

(1990) (‘‘the lower courts have found the Aerospatiale comity analysis

cumbersome and unhelpful . . . ”’); Cotter, supra at 239 (“‘Unfortunately,

lower court decisions following Aerospatiale illustrate the lack of guidance

provided by the majority’s ad hoc comity analysis.’’); Mark G. Corrado,

The Supreme Court’s Impact on Swiss Bank Secrecy: Societe Nationale

(footnote continues)

The non-workability of the Aerospatiale majority opin-

ion rule is fully illustrated by the post-Aerospatiale lower

court decisions, which are discussed below:

(a) The post-Aerospatiale decisions which have ordered

Hague Evidence Convention discovery.

Since Aerospatiale, only three reported decisions have

ordered litigants to use the Hague Evidence Convention pro-

cedures. Hudson v. Hermann Pfauter GmbH & Co., 117

ER.D. 33 (N.D.N.Y. 1987); In re Perrier Bottled Water Litiga-

tion, 138 FR.D. 348 (D.Conn. 1991); Knight v. Ford Motor

Co., 260 N.J. Super. 110, 615 A.2d 297 (1992). The courts in

these decisions ‘‘have favored the comity analysis proposed

by Justice Blackmun in his Aerospatiale dissent.” John C.

(footnote continued)

Industrielle Aerospatiale v. United States District Court, 37 Am. U.L. Rev.

827, 835 (1988) (‘‘the standard established in Aerospatiale is unwork-

able’’); Mitchell, supra at 833 (‘“‘Although the Supreme Court settled the

issue of the Convention’s exclusivity, little else in [the majority] opinion

will assist lower courts confronted with cases involving foreign nationals

and discovery of evidence abroad.’’); David J. Gerber, International Discov-

ery After Aerospatiale: The Quest for an Analytical Framework, 82 Am.J.

Int’l L. 521, 522 (1989) (‘The Court failed, however, to provide an analyti-

cal framework that could be used to achieve the goals it established. As a

result, the opinion threatens to lead to conceptual chaos and may exacer-

bate rather than reduce current conflicts.’”’); Mark T. Roomberg, Societe

Nationale Industrielle Aerospatiale v. United States District Court — The

Hague Evidence Convention on Taking Evidence Abroad: The ‘“‘Optional”’

Treaty?, 3 Temple Int’! & Comp. L. J. 47, 49 (1989) (‘practitioners and

courts have little or no guidance in applying the Hague Evidence Conven-

tion”) (original emphasis); Stein, supra at 195 (“In [Aerospatiale], the

Supreme Court missed an opportunity to inject a measure of predictability

and consistency into the American judicial approach to extraterritorial

discovery”); Wilks & Goldberg, supra at 93 (‘‘The line drawn by the Court

was not truly a line; the rule established by the holding is truly a

nonrule.”’).

Plaster, The Hague Evidence Convention: The Need for Guid-

ance on Procedures and Resolution of Conflicts in Transna-

tional Discovery, 27 Vand. J. Transnat’] L. 185, 196 (1994).

Many other commentators have recognized the anamoly of

these courts following the Aerospatiale minority opinion.!9

These three courts’ decisions to implement the minority

opinion’s analytical framework are very compelling evidence

that the majority opinion’s analysis is unworkable.

(b) The post-Aerospatiale decisions which have ordered

federal rules discovery.

The remaining post-Aerospatiale reported decisions

have ordered litigants to use the federal rules, rather than

the Hague Evidence Convention, for discovery. Doster v. Carl

Schenk A.G., 141 FR.D. 50 (M.D.N.C. 1991); Roberts v. Heim,

130 ER.D. 430 (N.D.Cal. 1990); Rich v. Kis California, Inc.,

121 ER.D. 254 (M.D.N.C. 1988); Haynes v. Kleinwefers, 119

19 See Bermann, supra at 550 (‘‘the district court [in Hudson] specifi-

cally relied on the minority analysis espoused by Justice Blackmun in

justifying a general rule of prior resort.”); Stephen R. Bailey, Depositions

and Discovery — Hague Convention on the Taking of Evidence Abroad in

Civil or Commercial Matters, 54 J. Air L. & Com. 281, 300 (1988) (‘‘[In

Hudson] the court seemed to disregard the majority’s explicit rejection of

the first resort principle in [Aerospatiale}.’’); Cotter, supra at 240 (“‘[the

Hudson] court, frustrated in its purported attempt to apply the majority’s

ad hoc comity analysis, relied almost exclusively on Justice Blackmun’s

tripartite analysis to support its comity findings.”); Dwyer & Yurow, supra

at 472 (In Hudson . . . the district court noted [the majority opinion’s]

explicit failure to offer guidance and so applied the three-part analysis

which [the minority opinion] offered.”); Minch, supra at 526-27 (“The

[Hudson] court . . . has in fact performed a comity analysis similar to

that urged by Justice Blackmun . . . ”’); Muse, supra at 1113 (“Although

purporting to follow Aerospatiale, the [Hudson] court actually adopted

Justice Blackmun’s analysis.’’); Weintraub, supra at 465 (‘‘Hudson . . .

expressed a preference for Justice Blackmun’s analysis’’).

FR.D. 335 (E.D.N.Y. 1988); Benton Graphics v. Uddeholm

Corp., 118 FR.D. 386 (D.N.J. 1987); In re Bedford Computer

Corp., 114 B.R. 2 (Bankr. D.N.H. 1990); In re Asbestos Litiga-

tion, 623 A.2d 546 (Del. Super. 1992); Moake v. Source Inter-

national Corp., 263 N.J. Super. 455, 623 A.2d 263 (1993);

Erbach Finance Corp. v. Royal Bank of Canada, 199 A.D.2d

87, 605 N.Y.S.2d 52 (1st Dept. 1993); Scarminach v. Goldwell

GmbH, 140 Misc.2d 103, 531 N.Y.S.2d 188 (1988); Sandsend

Financial Consultants, Ltd. v. Wood, 743 S.W2d 364

(Tex.App. lst Dist. 1988).

The Aerospatiale minority opinion predicted that the

majority opinion’s ad hoc balancing test would be unwork-

able because the lower courts would display a pro-forum bias

toward federal rules discovery and would be unable to per-

form an international comity analysis. All the commentators

who have analyzed the post-Aerospatiale lower court juris-

prudence agree that this is exactly what has occurred. As one

commentator has stated:

In performing the pot ame J neutral balancing test

advocated by the Aerospatiale majority, lower courts

have shown the fawn bias toward FRCP dis-

covery rules and U.S. interests predicted by the Aer-

ospatiale minority. Lower courts have consistently

paces the burden of proving the [Hague Evidence

onvention’s] effectiveness on the party advocating

use of the [Hague Evidence Convention]. This has

roven a difficult and impractical burden to sustain.

n addition, lower courts have accorded little or no

weight to international comity concerns in resolv-

ing disputes about foreign me Thus lower

courts have applied the majority’s balancing test in

a manner that rarely results in use of the HEC.

Griffin & Bravin, supra at 336.2°

Many of the commentators have pointed out in particu-

lar that the lower courts have been unable properly to per-

form the comity-balancing analysis required by the

Aerospatiale majority opinion because the majority opinion

failed to provide any guidelines for performing the analysis.

As one commentator has stated:

This case-by-case approach is unsatisfactory be-

cause it neither defines the duty of the lower courts

in administering an effective treaty of the United

States nor identifies the U.S. interests that require

that the treaty be disregarded.

Minch, supra at 521.?!

20 See also Stephen F. Black, United States Transnational Discovery:

The Rise and Fall of the Hague Evidence Convention, 40 Int’! & Comp. L.

Q. 901, 906 (1991) (‘‘Events have proved the dissenting minority’s fears

more than justified. In the aftermath of Aerospatiale, the lower court

rulings have been mainly hostile to the Convention.”’); Cotter, supra at 240

(“‘[The minority opinion’s] prediction of a pro-forum bias in favor of using

the Federal Rules instead of the Convention was borne out by lower court

decisions.”’); Dwyer & Yurow, supra at 475 (“‘the various lower court opin-

ions rejecting use of Convention procedures are circular and nonsensi-

cal.’’); Plaster, supra at 195 (‘These decisions show the difficulty lower

courts confront in applying Aerospatiale’s ad hoc comity analysis meaning-

fully. Courts, therefore, fall back on their parochial bias toward the Federal

Rules.”’)

21 See also Corrado, supra at 864 (‘Without sufficient guidelines the

federal judiciary will most likely rule in favor of American interests and

cast aside the strengths of international comity: reciprocity and good

will.””); Di Fronzo, supra at 750 (“‘The minority opinion is also preferable

to the majority case-by-case analysis, given the lack of guidelines provided

by the majority to lower courts in determining whether to use Evidence

Convention procedures or not.”’); Garcia, supra at 279 (“‘Entrusting to the

lower courts a doctrine as ambiguous and potentially damaging as comity

without the necessary guidance is dangerous, for it entails the risk that

lower courts will compromise fundamental United States interests.”

(footnote continues)

The district court and court of appeals’ decisions in the

instant case are paradigmatic of the lower courts’ inability to

perform the analysis required by Aerospatiale. The magis-

trate judge failed to give proper consideration to the three

factors to be used under Aerospatiale in determining

whether to require use of the Hague Evidence Convention

(App. B, infra, pp. B-1-B-4). Indeed, the district judge, in

ruling upon Riitgerswerke’s objections to the magistrate

judge’s ruling, stated that: “The defendant correctly as-

serted that the Magistrate Judge did not use all the [Aerospa-

tiale] criteria.’ The district judge nonetheless affirmed the

magistrate judge’s decision, although in so doing he com-

pounded the magistrate judge’s error by failing to provide

any additional analysis of the Aerospatiale criteria (App. B,

(footnote continued)

Groves, supra at 395 (‘‘Federal courts burdened by an already heavy vol-

ume of !itigation cannot be expected to adequately exercise the ‘special

vigilance’ the Supreme Court now requires.”); Owen Peter Martikan, The

Boundaries of the Hague Evidence Convention: Lower Court Interest Bal-

ancing After the Aerospatiale Decision, 68 Tex. L. Rev. 1003, 1019 (1990)

(“Although the majority in Aerospatiale contemplated a rigorous review

by lower courts of international comity interests supporting resort to the

Hague Convention, meaningful review is often lacking in subsequent

lower court opinions.”); Roth supra at 448 (‘‘Unfortunately, the majority’s

particularized comity analysis fails to provide lower courts with sufficient

guidance regarding when resort to the Convention is appropriate.’’); Paul

Scott, Extraterritorial Discovery and the Hague Evidence Convention after

Societe Nationale Industrielle Aerospatiale: An American Interests Ap-

proach to Comity, 13 Yale J. Int’] L. 366, 386-87 (1988) (‘‘The unguided

efforts of the lower courts have resulted in uncertain and unpredictable

decisions of questionable fairness and utility. Unfortunately, the vague

decision by the Supreme Court in [Aerospatiale] has done little to alleviate

the problem.’’) Spencer Weber Waller, A Unified Theory of Transnational

Procedure, 26 Cornell L. Rev. 101, 110 (1993) (‘“‘Most courts have avoided

the delicate balancing process called for in Aerospatiale and have simply

allocated the burden of proof to the party opposing the use of the Federal

Rules.’’)

infra, pp. B-5-B-6). The Sixth Circuit’s short opinion merely

defers to the discretion of the district court (App. A, infra,

pp. A-1-A-3). Accordingly, under the lower courts’ rulings,

Rutgerswerke is being required to comply with federal

rules discovery in the absence of anything remotely resem-

bling the balancing test, giving particular regard to the sov-

ereign interests involved, which Aerospatiale mandated.

3. Summary.

After seven years of experience with Aerospatiale, it is

clear that the majority opinion is unsound in principle and

unworkable in practice.

Many commentators advocate the substitution of Jus-

tice Blackmun’s first resort analysis for the majority opin-

ion’s ad hoc balancing test. There is other sentiment that

*2 See Bailey, supra at 301-02 (“‘the interests of international comity

would be best served by requiring first resort to the Convention proce-

dures when foreign discovery is sought’’); Corrado, supra at 865 (‘“The

Supreme Court should establish a rule instructing the federal courts to

resort first to the discovery procedures of an international agreement

rather than to the reasonableness standard established in Aerospatiale.’’);

Cotter, supra at 254 (‘‘now is the appropriate time for the U.S. to reaffirm

its commitment to international comity and place its interpretation of the

Convention on a solid treaty basis with other signatories by adopting a

first-resort rule for Convention procedures.”’); Di Fronzo, supra at 754 (‘A

presumption in favor of the Evidence Convention is advocated when dis-

covery is sought in civil or commercial matters in a foreign contracting

state’’); Glennon, supra at 263 (‘‘the Court did not give adequate attention

to international comity interests in holding that these procedures are not

required to be the avenue of first resort.”); Groves, supra at 397 (‘the

Convention, not the Federal Rules, should be the avenue of first resort.’’);

Matthews, supra at 319 (‘‘at a minimum, the agreement was intended to

establish procedures of first resort.’’); Muse, supra at 1109 (‘‘the majority

in Aerospatiale erred in declining to require at least mandatory first resort

to Hague Convention procedures to obtain documents located abroad.’’);

(footnote continues)

this Court should hold that the Hague Evidence Convention

is the mandatory and exclusive method for taking discovery

from a party located in a foreign signatory nation.”%

The time has come for this Court to reconsider the ma-

jority opinion in Aerospatiale and formulate a new rule gov-

erning the use of the Hague Evidence Convention which is

both sound in principle and workable in practice.

(footnote continued)

Plaster, supra at 216 (‘““The best way to discourage lower courts’ reliance

on the Federal Rules is for the Supreme Court to reconsider its Aerospa-

tiale decision and adopt the ‘first use’ rule set forth in Justice Blackmun’s

dissent.’’); Roomberg, supra at 66 (“the Hague Evidence Convention

should be the mandatory first step in taking discovery abroad in all cir-

cumstances.’’); Roth, supra at 470 (‘‘this Comment proposes largely incor-

porating Justice Blackmun’s presumptive first resort approach into the

Federal Rules of Civil Procedure.”’); Slomanson, supra at 397 (‘‘The

United States should adopt [Justice Blackmun’s] ‘first resort’ approach to

the Hague Evidence Convention.’’); Stein, supra at 168 (“‘American courts

should employ Convention procedures as a first resort in all cases where

those procedures would not clearly be futile.); Weis, supra at 931 (‘A

prerequisite of resort to the Convention would drastically minimize con-

flicts with foreign nations without abrogating the right of the district

courts to apply the Federal Rules when the Convention route is ineffec-

tive.”’); Roger C. Wilson, The Hague Evidence Convention in U.S. Courts:

Aerospatiale and the Path Not Taken, Societe Nationale Industrielle Aeros-

patiale v. U.S. District Court for the Southern District of Iowa, 107 S.Ct.

2542 (1987), 17 Ga. J. Int’] & Comp. L. 591, 602 (“‘the Supreme Court

bypassed a less rigid alternative and unnecessarily diminished the Con-

vention’s stature in American courts: a requirement of first consideration

of the Convention for foreign discovery.’’) (original emphasis).

23 See Kuhn, supra at 1064 (“the Convention, by its terms, provides

mandatory procedures for obtaining evidence abroad.’’).

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

RICHARD M. FRANKLIN

ROBERT L. BERNER, JR.

DAVID P. HACKETT

Baker & McKenzie

One Prudential Plaza

Chicago, IL 60601

(312) 861-8000

Counsel for Petitioner

November 14, 1994

A-1

APPENDIX A

No. 94-3703

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

In re: RUTGERSWERKE AG ORDER

Petitioner.

Before: JONES and BATCHELDER, Circuit Judges; and

JOINER, Senior District Judge.”

The petitioner, Riitgerswerke AG, is a German corpora-

tion which is named as a defendant in environmental class

action pending in the district court. In this petition for a writ

of mandamus, Riitgerswerke asks this court to rule that all

discovery requests made of it must be pursuant to the Hague

Convention on the Taking of Evidence Abroad in Civil or

Commercial Matters, 23 U.S.T. 2555, 28 U.S.C.A. §1781 (West

1994). As a preliminary matter, Riitgerswerke asks this court

to direct formal briefing on this issue and invite the Federal

Republic of Germany to file an amicus curiae brief. The

plaintiffs have moved to dismiss the petition on grounds that

relief in mandamus is not appropriate to seek reversal of a

discretionary decision of the district court. Riitgerswerke has

moved to strike the motion to dismiss, arguing that it is an

unauthorized attempt to respond to its petition on the mer-

its. We deny the motion to strike. It is noted that this court

may deny a petition for a writ of mandamus in the absence of

any formal response. See Fed. R. App. P 21(b).

* The Honorable Charles W. Joiner, Senior U.S. District Judge for the

Eastern District of Michigan, sitting by designation.

A-2

No. 94-3703

The extraordinary writ of mandamus is used “‘to confine

an inferior court to a lawful exercise of its authority when it

is its duty to do so.’” Will v. United States, 389 U.S. 90, 104

(1967) (citations omitted). Only exceptional circumstances

amounting to a judicial usurpation of power justify granting

the writ. Jd. Mandamus may be available to review a discov-

ery order which raises ‘‘questions of unusual importance

necessary to the economical and efficient administration of

justice.” FDIC v. Ernst & Whinney, 921 F-2d 83, 85 (6th Cir.

1990) (citations omitted). However, mandanwus is generally

not available to control a district court in the exercise of

discretionary duties. In re American President Lines, Ltd.,

929 F.2d 226, 227 (6th Cir. 1991)(order), (citations omitted).

In the instant case, the law is clear that the terms of the

Hague Convention on the Taking of Evidence are optional.

Societe Nationale Industrielle Aerospatiale v. U.S. District

Court, 482 U.S. 522 (1987). The Supreme Court has not ar-

ticulated specific guidelines for the application of the Hague

Convention, but has indicated that the trial court must de-

termine in each case based on the factors present in that case

whether discovery against a foreign party shall proceed

under the Hague Convention or the federal civil rules. Jd., at

546. The district court has made that determination in the

instant case, and Riitgerswerke’s petition does not establish

a clear and indisputable right to relief in mandamus

as a result of the district court’s decision. Although

Riitgerswerke asks that briefing be ordered in this matter, if

this court is of the opinion that a writ of mandamus should

not be granted, it shall deny the petition. Fed. R. App. P

21(b). We conclude this case is not appropriate for relief in

mandamus.

A-3

No. 94-3703

It therefore is ORDERED that the petition for a writ of

mandamus is denied. The plaintiffs’ motion to dismiss is

denied as moot.

ENTERED By ORDER OF THE

COURT

/S/ LEONARD GREEN

Clerk

B-1

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KAY BETTIS, et al., Case No. 4:90CV0502

Plaintiff Magistrate Judge

v. David Perelman

RUETGERS-NEASE CHEMICAL [ Judge George W. White

Co., INC., MEMORANDUM

Defendant | OPINION AND ORDER

At the status conference held May 4, 1994 this Court

orally advised counsel that the motion of defendant

Rutgerswerke seeking a protective order requiring the plain-

tiffs to use the procedures specified in the Hague Convention

on the Taking of Evidence Abroad in Civil and Commercial

Matters for discovery to be taken from Rutgerswerke would

be denied. This Court further stated, however, that such

denial did not mean that Rutgerswerke was obliged to re-

spond to all of the interrogatories and requests for produc-

tion of documents presently outstanding, and that if and/or

when a motion to compel came on for ruling the parameters

of the discovery to be allowed would be judged very carefully.

This ruling is entered to confirm that oral advice.

As the parties recognize, whether discovery in a given

case is to be controlled by the Federal Rules of Civil Proce-

dure or by the Hague Convention rests in the discretion of

the trial court. Societe Nationale Industrielle Aerospatiale v.

United States District Court, 482 U.S. 522 (1987). In deciding

in which direction that discretion is to be exercised the court

should look to ‘‘the particular facts [of the case], sovereign

interests, and likelihood that resort to those procedures will

prove effective.” Id. at 544.

In concluding that the Federal Rules of Civil Procedure

provide the preferable mode of discovery herein, this Court

has looked to the nature of the claim asserted against

Rutgerswerke and the nature of the evidence which the

plaintiffs must adduce to establish that claim.

The plaintiffs’ theory of liability as regards Rutger-

swerke is that it exercised such a degree of control over the

day-to-day affairs of its American subsidiary Ruetgers-Nease

Chemical that it may, and should be, held responsible for the

discharge of pollutants from a Superfund site occupied by

Ruetgers-Nease.

It is plain that in order to prove such allegation the

plaintiffs must be able to explore through discovery both the

basic relationship between Rutgerswerke and Ruetgers-

Nease and the more detailed manner in which that relation-

ship was implemented on an operational basis. It is equally

plain that such a relationship will, to a significant extent, be

reflected in documents generated by each of those entities,

and/or flowing between them.

Rutgerswerke’s motion acknowledges that under the

Hague Convention ‘‘Germany will not execute letter of re-

quests for pre-trial document production”? (Reply Memo.

p. 8). It is however argued that which plaintiffs might need at

trial documents can be identified through pre-trial discovery

and can be ordered produced during the trial proceeding. It is

further argued that many of the documents in question have

been, or can be, secured through Ruetgers-Nease.

ea,

B-3

In this Court’s opinion, identifying documents pretrial

for production at trial is simply not a feasible alternative.

Not only is such approach inconsistent with the concept of

full pre-trial discovery, so that the parties can properly pre-

pare for trial, it would result in a substantial impediment to

an orderly trial.

This Court does find merit in the contention that dupli-

cative discovery should not be allowed. That problem, how-

ever, can be dealt with by regulating discovery under the

Federal Rules.!

Although this Court does not believe that this is an

appropriate case for application of the Hague Convention,

this Court intends to regulate discovery bearing in mind the

Supreme Court’s admonition in Aerospatiale that the factor

of sovereign interests calls upon the courts to recognize that

“Some discovery procedures are much more ‘intrusive’ than

others,” 482 U.S. at 545, and that, although declining to

insist upon the use of Convention procedures, ‘“‘The exact

line between reasonableness and unreasonableness in each

case must be drawn by the trial court, based on its knowledge

of the case and of the claims and interests of the parties and

the governments whose statutes and policies they invoke,”

id. at 546. At the pretrial this Court offered counsel some

' For example, in the document discovery requests to Rutgerswerke

there are a number of items calling for unredacted copies of documents

produced in redacted form during the deposition of a Ruetgers-Nease

employee. At the status conference this Court advised plaintiffs’ counsel

that such production would not be ordered, for the reason that amotion to

compel could be brought against Ruetgers-Nease in order to obtain un-

redacted copies.

B-4

general thoughts as to where, in this case, the line between

reasonableness/unreasonableness may be found, and trusts

that they will be guided accordingly.

Defendant’s third motion for a protective order is

denied.

It Is SO ORDERED

/s/ DAVID S. PERELMAN

DAVID S. PERELMAN

United States Magistrate Judge

Date: May 6, 1994

B-5

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KAY BETTIS, e¢ al.,

Plaintiff Case No. 4:90CV502

v. Hon. George W. White

RUETGERS-NEASE CHEMICAL | eEMORANDUM AND

Co., INC., ORDER

Defendant |

On May 6, 1994 the Magistrate Judge filed a Memoran-

dum Opinion and Order ruling that Defendant

Rutgerswerke AG’s motion for protective order be denied.

This matter is before the Court upon this Defendant’s appeal

from the Magistrate Judge’s decision pursuant to

28 U.S.C. § 636(b)(1)(A).

The United States Supreme Court held in Societe Na-

tionale Industrielle Aerospatiale v. United States District

Court, 482 U.S. 522 (1987) that the Hague Evidence Conven-

tion is applicable to discovery in civil cases. It set forth three

factors to be used in determining whether to require use of

the Hague Evidence Convention. These are: the particular

facts of each case, the sovereign interest involved and

whether resort to the Hague Evidence Convention would be

an effective discovery device. 482 U.S. at 544. The Defendant

acknowledged that the Magistrate Judge recognized these

factors but contends that he misapplied one of the three

factors and did not consider the other two. It is argued that

failure to give proper consideration to the three factors ren-

ders the Magistrate Judge’s report and recommendation

clearly erroneous or contrary to law requiring modification.

B-6

Whether or not discovery is to be governed by the Fed-

eral Rules of Civil Procedure or by the Hague Convention

rests in the discretion of the trial court. Societe Nationale

Industrielle Aerospatiale v. United States District Court,

482 U.S. at 544. The Defendant correctly asserted that the

Magistrate Judge did not use all the Societe criteria. How-

ever, modification of the Magistrate Judge’s order is not nec-

essary as long as it is not clearly erroneous or contrary to law.

Under the Hague Convention, Plaintiff would not be

able to obtain documents before trial. The Court agrees with

the Magistrate Judge that production of documents during

trial is not feasible. It would interfere with the Plaintiff's

ability to prepare for trial and also impede efforts to conduct

an orderly trial.

The Magistrate Judge recognized that Germany has a

sovereign interest in how evidence is conducted and wrote

that he intends to regulate discovery accordingly. Further-

more, this Court notes that the Defendant has been con-

ducting discovery under the Federal Rules of Civil Procedure

to its benefit. Plaintiff should not be precluded from ob-

taining discovery in the same manner.

Accordingly, the Court finds that the decision of the

Magistrate Judge denying defendant Rutgerswerke AG’s

motion for protection order is not clearly erroneous or con-

trary to law. The decision of the Magistrate Judge is affirmed.

The Defendant’s motion for protective order is denied.

IT Is SO ORDERED.

/s/ GEORGE W. WHITE

GEORGE W. WHITE

United States District Judge

Peas Pere aT oe age

C-1

APPENDIX C

CONVENTION ON THE TAKING OF EVIDENCE ABROAD

IN CIVIL OR COMMERCIAL MATTERS

The States signatory to the present Convention,

Desiring to facilitate the transmission and execution of

Letters of Request and to further the accommodation of the

different methods which they use for this purpose.

Desiring to improve mutual judicial co-operation in civil

or commercial matters.

Have resolved to conclude a Convention to this effect

and have agreed upon the following provisions —

* * *

CHAPTER I — LETTERS OF REQUEST

Article 1

In civil or commercial matters a judicial authority of a

Contracting State may, in accordance with the provisions of

the law of that State, request the competent authority of

another Contracting State, by means of a Letter of Request,

to obtain evidence, or to perform some other judicial act.

A Letter shall not be used to obtain evidence which is

not intended for use in judicial proceedings, commenced or

contemplated.

C-2

The expression ‘other judicial act” does not cover the

service of judicial documents or the issuance of any process

by which judgments or orders are executed or enforced, or

orders for provisional or protective measures.

Article 2

A Contracting State shall designate a Central Authority

which will undertake to receive Letters of Request coming

from a judicial authority of another Contracting State and to

transmit them to the authority competent to execute them.

Each State shall organize the Central Authority in accor-

dance with its own law.

Letters shall be sent to the Central Authority of the

State of execution without being transmitted through any

other authority of that State.

Article 3

A Letter of Request shall specify —

(a) the authority requesting its execution and the authority

requested to execute it, if known to the requesting

authority;

(b) the names and addresses of the parties to the proceed-

ings and their representatives, if any;

required, giving all necessary information in regard

thereto;

(d) the evidence to be obtained or other judicial act to be

performed.

C-3

Where appropriate, the Letter shall specify, inter alia —

(e) the names and addresses of the persons to be examined;

(f) the questions to be put to the persons to be examined or

a statement of the subject-matter about which they are

to be examined;

(g) the documents or other property, real or personal, to be

inspected;

(h) any requirement that the evidence is to be given on oath

or affirmation, and any special form to be used;

(i) any special method or procedure to be followed under

Article 9.

A Letter may also mention any information necessary

for the application of Article 11.

No legalization or other like formality may be required.

Article 4

A Letter of Request shall be in the language of the

authority requested to execute it or be accompanied by a

translation into that language.

Nevertheless, a Contracting State shall accept a Letter

in either English or French, or a translation into one of these

languages, unless it has made the reservation authorized by

Article 33.

A Contracting State which has more than one official

language and cannot, for reasons of internal law, accept Let-

ters in one of these languages for the whole of its territory,

shall, by declaration, specify the language in which the Let-

ter or translation thereof shall be expressed for execution in

C-4

the specified parts of its territory. In case of failure to comply

with this declaration, without justifiable excuse, the costs of

translation into the required language shall be borne by the

State of origin.

A Contracting State may, by declaration, specify the

language or languages other than those referred to in the

preceding paragraphs, in which a Letter may be sent to its

Central Authority.

Any translation accompanying a Letter shall be certified

as correct, either by a diplomatic officer or consular agent or

by asworn translator or by any other person so authorized in

either State.

Article 5

If the Central Authority considers that the request does

not comply with the provisions of the present Convention, it

shall promptly inform the authority of the State of origin

which transmitted the Letter of Request, specifying the ob-

jections to the Letter.

Article 6

If the authority to whom a Letter of Request has been

transmitted is not competent to execute it, the Letter shall

be sent forthwith to the authority in the same State which is

competent to execute it in accordance with the provisions of

its own law.

C-5

Article 7

The requesting authority shall, if it so desires, be in-

formed of the time when, and the place where, the proceed-

ings will take place, in order that the parties concerned, and

their representatives, if any, may be present. This informa-

tion shall be sent directly to the parties or their representa-

tives when the authority of the State of origin so requests.

Article 8

A Contracting State may declare that members of the

judicial personnel of the requesting authority of another

Contracting State may be present at the execution of a Letter

of Request. Prior authorization by the competent authority

designated by the declaring State may be required.

Article 9

The judicial authority which executes a Letter of Re-

quest shall apply its own law as to the methods and proce-

dures to be followed.

However, it will follow a request of the requesting au-

thority that a special method or procedure be followed, un-

less this is incompatible with the internal law of the State of

execution or is impossible of performance by reason of its

internal practice and procedure or by reason of practical

difficulties.

A Letter of Request shall be executed expeditiously.

C-6

Article 10

In executing a Letter of Request the requested author-

ity shall apply the appropriate measures of compulsion in the

instances and to the same extent as are provided by its inter-

nal law for the execution of orders issued by the authorities

of its own country or of requests made by parties in internal

proceedings.

Article 11

In the execution of a Letter of Request the person con-

cerned may refuse to give evidence in so far as he has a

privilege or duty to refuse to give the evidence —

(a) under the law of the State of execution; or

(b) under the law of the State of origin, and the privilege or

duty has been specified in the Letter, or, at the instance

of the requested authority, has been otherwise con-

firmed to that authority by the requesting authority.

A Contracting State may declare that, in addition, it will

respect privileges and duties existing under the law of States

other than the State of origin and the State of execution, to

the extent specified in that declaration.

Article 12

The execution of a Letter of Request may be refused

only to the extent that —

(a) in the State of execution the execution of the Letter does

not fall within the functions of the judiciary; or

C-7

(b) the State addressed considers that its sovereignty or

security would be prejudiced thereby.

Execution may not be refused solely on the ground that

under its internal law the State of execution claims exclusive

jurisdiction over the subject-matter of the action or that its

internal law would not admit a right of action on it.

Article 13

The documents establishing the execution of the Letter

of Request shall be sent by the requested authority to the

requesting authority by the same channel which was used by

the latter.

In every instance where the Letter is not executed in

whole or in part, the requesting authority shall be informed

immediately through the same channel and advised of the

reasons.

Article 14

The execution of the Letter of Request shall not give

rise to any reimbursement of taxes or costs of any nature.

Nevertheless, the State of execution has the right to

require the State or origin to reimburse the fees paid to

experts and interpreters and the costs occasioned by the use

of a special procedure requested by the State of origin under

Article 9, paragraph 2.

The requested authority whose law obliges the parties

themselves to secure evidence, and which is not able itself to

execute the Letter, may, after having obtained the consent of

the requesting authority, appoint a suitable person to do so.

C-8

When seeking this consent the requested authority shall in-

dicate the approximate costs which would result from this

procedure. If the requesting authority gives its consent it

shall reimburse any costs incurred; without such consent the

requesting authority shall not be liable for the costs.

CHAPTER II — TAKING OF EVIDENCE BY DIPLOMATIC

OFFICERS, CONSULAR AGENTS AND COMMISSIONERS

Article 15

In a civil or commercial matter, a diplomatic officer or

consular agent of a Contracting State may, in the territory of

another Contracting State and within the area where he

exercises his functions, take the evidence without compul-

sion of nationals of a State which he represents in aid of

proceedings commenced in the courts of a State which he

represents.

A Contracting State may declare that evidence may be

taken by a diplomatic officer or consular agent only if permis-

sion to that effect is given upon application made by him or

on his behalf to the appropriate authority designated by the

declaring State.

Article 16

A diplomatic officer or consular agent of a Contracting

State may, in the territory of another Contracting State and

within the area where he exercises his functions, also take

the evidence, without compulsion, of nationals of the State in

which he exercises his functions or of a third State, in aid of

proceedings commenced in the courts of a State which he

represents, if —

C-9

(a) acompetent authority designated by the State in which

he exercises his functions has given its permission either

generally or in the particular case, and

(b) he complies with the conditions which the competent

authority has specified in the permission.

A Contracting State may declare that evidence may be

taken under this Article without its prior permission.

Article 17

In a civil or commercial matter, a person duly appointed

as a commissioner for the purpose may, without compulsion,

take evidence in the territory of a Contracting State in aid of

proceedings commenced in the courts of another Contracting

State if —

(a) a competent authority designated by the State where

the evidence is to be taken has given its permission

either generally or in the particular case; and

(b) he complies with the conditions which the competent

authority has specified in the permission.

A Contracting State may declare that evidence may be

taken under this Article without its prior permission.

Article 18

A Contracting State may declare that a diplomatic of-

ficer, consular agent or commissioner authorized to take evi-

dence under Articles 15, 16 or 17, may apply to the

competent authority designated by the declaring State for

C-10

appropriate assistance to obtain the evidence by compulsion.

The declaration may contain such conditions as the declaring

State may see fit to impose.

If the authority grants the application it shall apply any

measures of compulsion which are appropriate and are pre-

scribed by its law for use in internal proceedings.

Article 19

The competent authority, in giving the permission re-

ferred to in Articles 15, 16 or 17, or in granting the applica-

tion referred to in Article 18, may lay down such conditions

as it deems fit, inter alia, as to the time and place of the

taking of the evidence. Similarly it may require that it be

given reasonable advance notice of the time, date and place of

the taking of the evidence; in such a case a representative of

the authority shall be entitled to be present at the taking of

the evidence.

Article 20

In the taking of evidence under any Article of this Chap-

ter persons concerned may be legally represented.

Article 21

Where a diplomatic officer, consular agent or commis-

sioner is authorized under Articles 15, 16 or 17 to take evi-

dence —

(a) he may take all kinds of evidence which are not incom-

patible with the law of the State where the evidence is

. my) bie"

Pe RC Me fr en ap ne OM es Leena ee Dane LANE Se ey 9 |

(b)

(c)

(d)

(e)

C-11

taken or contrary to any permission granted pursuant to

the above Articles, and shall have power within such

limits to administer an oath or take an affirmation;

a request to a person to appear or to give evidence shall,

unless the recipient is a national of the State where the -

action is pending, be drawn up in the language of the

place where the evidence is taken or be accompanied by

a translation into such language;

the request shall inform the person that he may be le-

gally represented and, in any State that has not filed a

declaration under Article 18, shall also inform him that

he is not compelled to appear or to give evidence;

the evidence may be taken in the manner provided by

the law applicable to the court in which the action is

pending provided that such manner is not forbidden by

the law of the State where the evidence is taken;

a person requested to give evidence may invoke the priv-

ileges and duties to refuse to give the evidence contained

in Article 11.

Article 22

The fact that an attempt to take evidence under the

procedure laid down in this Chapter has failed, owing to the

refusal for the person to give evidence, shall not prevent an

application being subsequently made to take the evidence in

accordance with Chapter I.

C-12

CHAPTER III — GENERAL CLAUSES

Article 23

A Contracting State may at the time of signature, ratitfi-

cation or accession, declare that it will not execute Letters of

Request issued for the purpose of obtaining pretrial discov-

ery of documents as known in Common Law countries.

Article 24

A Contracting State may designate other authorities in

addition to the Central Authority and shall determine the

extent of their competence. However, Letters of Request may

in all cases be sent to the Central Authority.

Federal States shall be free to designate more than one

Central Authority.

Article 25

A Contracting State which has more than one legal sys-

tem may designate the authorities of one of such systems,

which shall have exclusive competence to execute Letters of

Request pursuant to this Convention.

Article 26

A Contracting State, if required to do so because of

constitutional limitations, may request the reimbursement

by the State of origin of fees and costs, in connection with the

execution of Letters of Request, for the service of process

C-13

necessary to compel the appearance of a person to give evi-

dence, the costs of attendance of such persons, and the cost of

any transcript of the evidence.

Where a State has made a request pursuant to the above

paragraph, any other Contracting State may request from

that State the reimbursement of similar fees and costs.

Article 27

The provisions of the present Convention shall not pre-

vent a Contracting State from —

(a) declaring that Letters of Request may be transmitted to

its judicial authorities through channels other than

those provided for in Article 2;

(b) permitting, by internal law or practice, any act provided

for in this Convention to be performed upon less restric-

tive conditions;

ing evidence other than those provided for in this

Convention.

Article 28

The present Convention shall not prevent an agreement

between any two or more Contracting States to derogate

from —

(a) the provisions of Article 2 with respect to methods of

transmitting Letters of Request;

(b) the provisions of Article 4 with respect to the languages

which may be used;

C-14

judicial personnel at the execution of Letters;

(d) the provisions of Article 11 with respect to the privileges

and duties of witnesses to refuse to give evidence;

(e) the provisions of Article 13 with respect to the methods

of returning executed Letters to the requesting

authority;

(f) the provisions of Article 14 with respect to fees and

costs;

(g) the provisions of Chapter II.

Article 29

Between Parties to the present Convention who are also

Parties to one or both of the Conventions on Civil Procedure

signed at the Hague on the 17th of July 1905 [99 British

Foreign and State Papers 990] and the 1st of March1954 [286

UNTS 265], this Convention shall replace Articles 8-16 of the

earlier Conventions.

Article 30

The present Convention shall not affect the application

of Article 23 of the Convention of 1905, or of Article 24 of the

Convention of 1954.

Article 31

Supplementary Agreements between Parties to the

Conventions of 1905 and 1954 shall be considered as equally

applicable to the present Convention unless the Parties have

otherwise agreed.

C-15

Article 32

Without prejudice to the provisions of Articles 29 and

31, the present Convention shall not derogate from conven-

tions containing provisions on the matters covered by this

Convention to which the Contracting States are, or shall

become Parties.

Article 33

A State may, at the time of signature, ratification or

accession exclude, in whole or in part, the application of the

provisions of paragraph 2 of Article 4 and of Chapter II. No

other reservation shall be permitted.

Each Contracting State may at any time withdraw a

reservation it has made; the reservation shall cease to have

effect on the sixtieth day after notification of the withdrawal.

When a State has made a reservation, any other State

affected thereby may apply the same rule against the reserv-

ing State.

Article 34

A State may at any time withdraw or modify a

declaration.

Article 35

A Contracting State shall, at the time of the deposit of

its instrument of ratification or accession, or at a later date,

Pe. tet RP eee

OVS Phat, he en Mn tes 2 Sele ae ee he

C-16

inform the Ministry of Foreign Affairs of the Netherlands of

the designation of authorities, pursuant to Articles 2, 8, 24

and 25.

A Contracting State shall likewise inform the Ministry,

where appropriate, of the following —

(a)

(b)

(c)

(d)

(e)

The designation of the authorities to whom notice must

be given, whose permission may be required, and whose

assistance may be invoked in the taking of evidence by

diplomatic officers and consular agents, pursuant to Ar-

ticles 15, 16 and 18 respectively;

the designation of the authorities whose permission may

be required in the taking of evidence by commissioners

pursuant to Article 17 and of those who may grant the

assistance provided for in Article 18;

declarations pursuant to Articles 4, 8, 11, 15, 16, 17, 18,

23 and 27;

any withdrawal or modification of the above designa-

tions and declarations;

the withdrawal of any reservation.

Article 36

Any difficulties which may arise between Contracting

States in connection with the operation of this Convention

shall be settled through diplomatic channels.

C-17

Article 37

‘The present Convention shall be open for signature by

the States represented at the Eleventh Session of the Hague

Conference on Private International Law. .

It shall be ratified, and the instruments of ratification

shall be deposited with the Ministry of Foreign Affairs of the

Netherlands.

Article 38

The present Convention shall enter into force on the

sixtieth day after the deposit of the third instrument of ratifi-

cation referred to in the second paragraph of Article 37.

The Convention shall enter into force for each signatory

State which ratifies subsequently on the sixtieth day after

the deposit of its instrument of ratification.

Article 39

Any State not represented at the Eleventh Session of

the Hague Conference on Private International Law which is

a Member of this Conference or of the United Nations or of a

specialized agency of that Organization, or a Party to the

Statute of the International Court of Justice!) may accede to

the present Convention after it has entered into force in

accordance with the first paragraph of Article 38.

The instrument of accession shall be deposited with the

Ministry of Foreign Affairs of the Netherlands.

C-18

The Convention shall enter into force for a State acced-

. ing to it on the sixtieth day after the deposit of its instrument

of accession.

The accession will have effect only as regards the rela-

tions between the acceding State and such Contracting

States as will have declared their acceptance of the accession.

Such declaration shall be deposited at the Ministry of For-

eign Affairs of the Netherlands; this Ministry shall forward,

through diplomatic channels, a certified copy to each of the

Contracting States.

The Convention will enter into force as between the

acceding State and the State that has declared its acceptance

of the accession on the sixtieth day after the deposit of the

declaration of acceptance.

Article 40

Any State may, at the time of signature, ratification or

accession, declare that the present Convention shall extend

to all the territories for the international relations of which it

is responsible, or to one or more of them. Such a declaration

shall take effect on the date of entry into force of the Conven-

tions for the State concerned. At any time thereafter, such

extensions shall be notified to the Ministry of Foreign Affairs

of the Netherlands.

The Convention shall enter into force for the territories

mentioned in such an extension on the sixtieth day after the

notification indicated in the preceding paragraph.

C-19

Article 41

The present Convention shall remain in force for five

years from the date of its entry into force in accordance with

the first paragraph of Article 38, even for States which have

ratified it or acceded to it subsequently.

If there has been no denunciation, it shall be renewed

tacitly every five years.

Any denunciation shall be notified to the Ministry of

Foreign Affairs of the Netherlands at least six months before

the end of the five year period.

It may be limited to certain of the territories to which

the Convention applies.

The denunciation shall have effect only as regards the

State which has notified it. The Convention shall remain in

force for the other Contracting States.

Article 42

The Ministry of Foreign Affairs of the Netherlands shall

give notice to the States referred to in Article 37, and to the

States which have acceded in accordance with Article 39, of

the following —

(a) the signatures and ratifications referred to in Article 37;

(b) the date on which the present Convention enters into

force in accordance with the first paragraph of

Article 38;

which they take effect;

C-20

(d) the extensions referred to in Article 40 and the dates on

which they take effect;

(e) the designations, reservations and declarations referred

to in Articles 33 and 35;

(f) the denunciations referred to in the third paragraph of

Article 41.

IN WITNESS WHEREOF the undersigned, being duly

authorised [sic] thereto, have signed the present Convention.

DONE at The Hague, on the 18th day of March 1970, in

the English and French languages, both texts being equally

authentic, in a single copy which shall be deposited in the

archives of the Government of the Netherlands, and of which

a certified copy shall be sent, through the diplomatic chan-

nel, to each of the States represented at the Eleventh Session

of the Hague Conference on Private International Law.

Done at The Hague March 18, 1970; entered into force

for the United States October 7, 1972. TIAS 7444;

23 UST 2555

States which are parties:

Argentina!

Australia?”

Barbados®

Cyprus‘

Czech Republic®

Denmark®

Finland’

France®

Federal Republic of Germany®

Israel!°

Italy"!

C-21

Luxemburg’?

Mexico!®

Monaco"*

Netherlands’®

Norway?!®

Portugal!”

Singapore!®

Slovak Republic’?

Spain”

Sweden?!

United Kingdom”

United States”*

9“‘A, The Government of the Federal Republic of Ger-

many makes the following declarations in accordance with

paragraph 1 of Article 33 of the Convention of 18th March

1970:

“The Federal Republic of Germany makes the res-

ervation provided for in the first sentence of para-

graph 1 of Article 33 of the Convention excluding

the application of the provisions of paragraph 2 of

Article 4 of the Convention. Letters of Request to be

executed under Chapter 1 of the Convention must,

in accordance with paragraphs 1 and 5 of Articie 4 of

the Convention, be in the German language or be

accompanied by a translation into that language.

“The Federal Republic of Germany declares in ac-

cordance with the option provided for in the first

sentence of paragraph 1 of Article 33 of the Conven-

tion to make a reservation excluding the application

of the provisions of Chapter II of the Convention

aa -

Sen RRS ape OY een ae a 2 * ‘ ~ - en rs +: jet Buia Sy ee

0 Ee Ripa Re Re eg ERG E IY Pi ne eee RE SRN Mie et renee ewer ete Be eee eee Gee, Pe

C-22

that the taking of evidence by diplomatic officers or

consular agents is not permissible in its territory if

German nationals are involved.

““B. The Government of the Federal Republic of Ger-

many makes the following declarations pursuant to Arti-

cle 35 of the Convention of 18th March 1970:

“(1) The authority competent to execute a Letter

of Request shall be the local court (Amtsgericht) in

whose district the official act is to be performed.

Letters of Request shall be addressed to the Central

Authority of the Land in which the respective re-

quest is to be executed. The Central Authority pur-

suant to Article 2 and paragraph 2 of Article 24 of

the Convention shall be for

Baden-Wirttemberg das Justizministerium

Baden-Wiirttemberg

(The Ministry of Justice of Baden-

Wiirttemberg),

D 7000 Stuttgart

Bavaria das Bayerische

Staatsministerium der Justiz

(The Bavarian State Ministry of Justice),

D 8000 Miinchen

Berlin der Senator fiir Justiz

(The Senator of Justice),

D 1000 Berlin

By Note of 29 September 1992 the following central authority was

designated |

Brandenburg Das Ministerium der Justiz |

des Landes Brandenburg

D-0-1561 Potsdam

Bremen

Hamburg

Hesse

Lower Saxony

C-23

der Prasident des Landgerichts Bremen

(The President of the Regional Court of

Bremen),

D 2800 Bremen

der Prasident des Amtsgerichts Hamburg

(The President of the Local Court of

Hamburg),

D 2000 Hamburg

der Hessische Minister der Justiz

(The Hessian Minister of Justice),

D 6200 Wiesbaden

der Niedersachsische

Minister der Justiz

(The Minister of Justice of Lower Saxony),

D 3000 Hannover

By Note of 29 September 1992 the following central authority was

designated

Mecklenburg —

Western Pomerania

Northrhine-Westphalia

Rhineland-Palatinate

Saarland

Der Minister fiir Justiz,

Bundes-und Europaangelegenheiten

D-0-2754 Schwerin

der Prasident des Oberlandesgerichts

Dusseldorf,

D 4000 Diisseldorf

das Ministerium der Justiz

(The Ministry of Justice),

D 6500 Mainz

der Minister fiir Rechtspflege

(The Minister of Justice),

D 6600 Saarbriicken

By Note of 29 September 1992 the following central authority was

designated

Saxony

Das Sachsische

Staatsministerium der Justiz

D-0-8060 Dresden

aaa ‘

vise

Beis

C-24

By Note of 29 September 1992 the following central authority was

designated

Saxony-Anhalt Das Ministerium der Justiz

des Landes Sachsen-Anhalt

D-0 3037 Magdeburg

Schleswig-Holstein der Justizminister des Landes Schleswig-

Holstein (The Minister of Justice of the Land

of Schleswig-Holstein),

D 2300 Kiel

By Note of 29 September 1992 the following central authority was

designated

Thuringia Das Justizministerium Thiringen

D-0-5082 Erfurt

(2) Pursuant to Article 8 of the Convention, the

Government of the Federal Republic of Germany

declares that members of the requesting court of

another Contracting State may be present at the

execution of a Letter of Request by the local court if

prior authorization has been given by the Central

Authority of the Land where the request is to be

executed.

““(3) The taking of evidence by diplomatic officers

or consular agents pursuant to paragraph 1 of Arti-

cle 16 of the Convention which involves nationals of

a third State or stateless persons shall be subject to

permission from the Central Authority of the Land

where the evidence is to be taken. Pursuant to para-

graph 2 of Article 16 of the Convention, permission

shall not be required if the national of the third

State is also a national of the State of the requesting

court.

C-25

“(4) A commissioner of the requesting court may

not take evidence pursuant to Article 17 of the Con-

vention unless the Central Authority of the Land

where the evidence is to be taken has given its per-

mission. Such permission may be made subject to

conditions. The local court in whose district official

acts would have to be performed by virtue of a Let-

ter of Request in the same matter shall be entitled |

to control the preparation and the actual taking of

the evidence. Under the second sentence of Arti-

cle 19 of the Convention, a member of the court may

be present at the taking of the evidence.

(5) The Federal Republic of Germany declares in

pursuance of Article 23 of the Convention that it

will not, in its territory, execute Letters of Request

issued for the purpose of obtaining pre-trial discov-

ery of documents as known in Common Law

countries.”’

D-1

APPENDIX D

Rule 29.1 LISTING OF ALL PARENT COMPANIES

AND SUBSIDIARIES (EXCEPT WHOLLY-OWNED

SUBSIDIARIES) OF RUTGERSWERKE AG

1. The following is the parent company of Riitgerswerke

AG: Ruhrkohle AG.

2. The following are the subsidiaries (except wholly-owned

subsidiaries) of Riitgerswerke AG: Ruberoid AG;

Rutgers Kureha Solvents GmbH; Frendo S.p.A.; Gio-

vanni Bozzetto S.p.A.; Industrias Quimicas del Urumea

S.A.; Comercial Quimica del Urumea S.A.; MAS Elec-

tronics Ltd.; Th. Goldschmidt AG; Stratebau GmbH;

Makadamwerk Schwaben GmbH; _ Siidhessische

Asphalt-Mischwerke GmbH & Co. KG fir

StraBenbaustoffe; Giinther Wiedenhagen Isolierbaus-

toffe GmbH; Hansa-Asphaltmischwerke GmbH & Co.

KG fiir StraBenbaustoffe; Essener Teerschotter GmbH;

Spezialtiefbau Ferdinand Aufschlager GmbH; Sigeco

GmbH Chemiehandel; Teerbau Italiana S.p.A.; Bilmac

Ltd.; COBREQ-Companhia Brasileira de Equipa-

mentos; BTM Baustoff-Technik & Mischwerke GmbH;

Asphalt-Mischwerk Demmin GmbH & Co. KG;

Aufschlager Spezialbau Magdeburg GmbH; AMN

Asphaltmischwerk KG StraBenbaustoffe Nonnendamm

GmbH & Co.; AMK Asphaltmischwerke Kiel GmbH &

Co. KG; DBR Dortmunder Baustoffrecycling GmbH;

RBR Reutlinger Baustoff-Recycling GmbH; TEGES

Asphalt- und Baustoffaufbereitung GmbH & Co. KG;

Rohrlec Gesellschaft fiir Rohrsanierung mbH; BRO

Baustoffaufbereitungs- und Recyclinganlage GmbH

Oldenburg; Baustoffrecycling-Zentrum Dresden Gitter-

see GmbH; AMK Asphaltmischwerke Kiel GmbH; BT

D-2

Bremsen-Tuning GmbH; StrafSenbaustoffe Non-

nendamm GmbH; Siidhessische Asphalt-Mischwerke

GmbH; TEGES Asphalt- und Baustoffaufbereitung

GmbH Verwaltungsgesellschaft; Hansa-Asphaltmis-

chwerke GmbH; OWB Gesellschaft fiir Baustoffre-

cycling mbH; ORL Baustoff Recycling GmbH; Asphalt-

Mischwerk Demmin GmbH; FPK S.A.; Diagnosticum

Ltd for Production and Distribution; CE.BO.TEX.-

S.R.L.; TW Dorstrof GmbH; Moldeados Interiores S.A.

de C.V; Pipe Recon PTE LTD; IMPEXITAL Far East

Ltd.; Ruhrkohle-Umwelttechnik GmbH (RUT); Ent-

sorgungsgesellschaft mbH Gutlau; Riitgers Umweltser-

vice GmbH; ANG Asphaltmischwerk Nentershausen

GmbH; RSC Rohrbau und Sanierungs GmbH; ABB

Bauwerkabdichtung GmbH; Teerfahrt GmbH; Paulal

Speditionsgesellschaft mbH; Ateliers & Fonderias

B.Piret S.A.; Italrom T.C. Textile Chemicals S.r.l.; Sep-

pim S.A.; Eurodiag S.A.; Acoustec S.A.R.L.; REMY

FRANCE S.A.; Abex Rail S.A.; BGB-Giovanni Bozzetto

S.A.; Urpol-Urumea Portuguesa Industrias Quimicas

Ltd.; Pagid UK Ltd.; VARIO spot.sr.o.; Pagid-Carlisle

S.A. de C.V; Rohr-Sanierungs-Bau GmbH; AWG

Asphaltmischwerk GmbH Gauselfingen KG; AWG

Asphaltmischwerk GmbH; Transportbeton GmbH

Gauselfingen.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.