Reply Brief — Rutgerswerke AG v. Bettis

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No. 94-865

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

RUTGERSWERKE AG,

Petitioner,

v.

KAY BETTIS, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

REPLY BRIEF IN SUPPORT OF

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

December 12, 1994

i

TABLE OF CONTENTS

1. This case is properly before this Court ....... 1

2. The Aerospatiale majority opinion is unsound

in principle and unworkable in practice....... 3

ii

TABLE OF AUTHORITIES

CASES:

Hutto v. Davis, 454 U.S. 370 (1982) ..............

Rodriguez De Quijas v. Shearson/American Express,

Ran Ge ek ee Is boot aan beh edawieass

Societe Nationale Industrielle Aerospatiale

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

Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,

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REPORTS/TREATIES:

Report on the Work of the Special Commission of

April, 1989 on the Operation of the Hague

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 I.L.M. 1556 (1989) .......

The Hague Evidence Convention on the Taking of

Evidence Abroad in Civil or Commercial Matters,

23 U.S.T. 255, T.1.A.S. No. 7444, 28 U.S.C.A. §1781

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NO. 94-865

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

RUTGERSWERKE AG,

y, Petitioner,

KAY BETTIS, et al.,

Respondents.

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Ritgerswerke AG (“Riitgerswerke’’) respectfully sub-

mits this reply brief in support of its Petition for a Writ of

Certiorari (the “‘Petition’’) and in reply to the Brief of Re-

spondents in Opposition to Petition for a Writ of Certiorari

(the ‘Respondents’ Brief ’’).!

1. This case is properly before this Court.

Respondents contend that review by this Court is pre-

cluded because Riitgerswerke’s Petition arises from the

court of appeals’ denial of a mandamus petition directed to

the district court’s denial of a motion for a protective order to

! Riitgerswerke refers to its Rule 29.1 listing included as Appendix D to

its Petition. [Petition pp. D-1—D-2]. No amendments are needed to make

the listing currently accurate.

2

require that all discovery from Riitgerswerke be taken pur-

suant to the Hague Evidence Convention. Respondents em-

phasize that the only case the lower courts cited in

addressing the merits was Societe Nationale Industrielle Aer-

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

[Respondents’ Brief pp. 5-6]. Respondents overlook that Aer-

ospatiale likewise came to this Court through the denial by a

court of appeals of a mandamus petition directed to a magis-

trate judge’s order which denied a motion for a protective

order to require that discovery be taken pursuant to the

Hague Evidence Convention. 482 U.S. at 525-29. Issues in-

volving the tension between the Hague Evidence Convention

and federal discovery rules can originate only in the context

of a discovery dispute, and naturally rise to this Court by the

route taken in Aerospatiale and now followed by

Ritgerswerke.

Respondents also contend that Riitgerswerke may not

seek this Court’s reversal of Aerospatiale because such rever-

sal was not sought in the lower courts. [Respondents’ Brief

p. 8]. Respondents cite no authority in support of this con-

tention, and there is none. This Court has made clear that

the lower courts must follow this Court’s precedents, and

that this Court alone has the prerogative of overruling this

Court’s decisions. See Rodriguez De Quijas v. Shearson/

American Express, Inc., 490 U.S. 477, 484 (1989); Thurston

Motor Lines, Inc. v. Jordan K. Rand, Lid., 460 U.S. 533, 535

(1983); Hutto v. Davis, 454 U.S. 370, 375 (1982). Petitioner

need not ask a magistrate judge, or indeed any lower court, to

overrule this Court’s precedent in order to reserve the right

to ask this Court to do so.

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2. The Aerospatiale majority opinion is unsound in

principle and unworkable in practice.

Respondents claim that because of the split between the

ten reported lower court decisions which have ordered liti-

gants to use federal rule discovery and the three decisions

which have ordered use of the Hague Evidence Convention

procedures, Aerospatiale has proven properly decided and

workable in practice. [Respondents’ Brief pp. 3-5]. The con-

clusion Respondents draw from these cases is incorrect. Pre-

cisely because Aerospatiale is unworkable, the three cases

ordering Hague Evidence Convention discovery have taken

the extraordinary step of following the Aerospatiale minority

analysis. [Petition pp. 21-22]. If Ritgerswerke’s motion for

protective order had come before any of these courts, it

doubtlessly would have been granted. In contrast, the deci-

sions ordering federal rule discovery, including the lower

court decisions in this case, have displayed a uniform pro-

federal rules bias and an inability to perform the interna-

tional comity analysis Aerospatiale requires. [Petition

pp. 22-26]. Indeed, this split in the case law is the most

compelling evidence that the lower courts are not following

Aerospatiale at all, and that Aerospatiale therefore is un-

sound and unworkable.

Riitgerswerke has cited more than 30 commentaries

which are critical of the Aerospatiale decision, while Respon-

dents have cited no authority which suggests that Aerospa-

tiale was correctly decided.2 Respondents are incorrect in

2 Two of the principal commentators Riitgerswerke relies upon are

George A. Bermann, Professor of Law at Columbia University, and Russell

J. Weintraub, Professor of Law and Holder of the John B. Connelly Chair

in Civil Jurisprudence at the University of Texas at Austin. The knowledge

and experience of these commentators belie Respondents’ contention that

(footnote continues)

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asserting that Rutgerswerke seeks the reversal of Aerospa-

tiale solely on the basis of these commentaries. [Respondents

Brief pp. 6-7]. Riitgerswerke cites these commentaries not

just for their authors’ conclusions that Aerospatiale was de-

cided incorrectly, but also because they elucidate the under-

lying deficiencies in the Aerospatiale majority opinion

including its irreconcilability with: (a) the text of the Hague

Evidence Convention [Petition pp. 10-13]; (b) the negotiation

history of the Hague Evidence Convention [Petition

pp. 13-14]; (c) the interests of the other signatory nations

and the international community [Petition pp. 14-15]; (d) the

1989 Special Commission Report of the Hague Conference

on Private International Law [Petition pp. 16-18]; and (e) the

1990 proposed amendments to the Federal Rules of Civil

Procedure [Petition pp. 18-20]. Respondents make no re-

sponse to any of these points and offer no grounds to support

the reasoning of the Aerospatiale majority opinion.

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

December 12, 1994

(footnote continued) ,

Ritgerswerke has cited “Only a handful of students and academics unfa-

miliar with the working world of international discovery and litigation,

along with a few practitioners...” [Respondents’ Brief p. 2].