(L-R) Cliff C. Gardner and Andrew Kinsey of Skadden, Arps, Slate, Meagher and Flom. Courtesy photos.
On Nov. 18, 2022, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery issued an opinion that provides a helpful roadmap for future litigants seeking discovery from foreign nonparties. In In re Cote d’Azur Estate, the court granted a plaintiff’s request for the issuance of a letter of request to “obtain the assistance of the central authority in Switzerland to facilitate discovery.” In doing so, the Vice Chancellor discussed the balancing test that courts must undertake before granting the issuance of a letter of request under the Hague Convention. The court subsequently granted another motion for letters of request using the same framework described below.
The case is part of a long-running dispute involving the disposition of an estate. One of the defendants in the case is the lawyer that helped establish the decedent’s estate plan. The discovery materials sought by the plaintiff are certain documents seized by Swiss authorities during an investigation into the lawyer. There was evidence that the documents were solely in the possession of the Swiss authorities, and the lawyer had not meaningfully participated in the litigation for years. For that reason, the Vice Chancellor noted that even if the lawyer had the documents it was unlikely that he would produce them. Accordingly, the plaintiff looked to the Hague Convention to obtain the documents from the nonparty Swiss authorities (as opposed to party discovery) and the court’s analysis similarly focused only on the Hague Convention.
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