When should American litigators care about a judgment of the French Cour de Cassation (Supreme Court) requiring a French lawyer to pay a 10,000 euro fine? When that decision may shake up the conventional wisdom about what discovery may be obtained from French (and perhaps other foreign) parties and nonparties.
Cross-border discovery is a subject on which France (and, for that matter, much of the world) and the United States do not see eye to eye. The U.S. Supreme Court in 1987 held, in Societe Nationale Industrielle Aerospatiale v. United States District Court,[FOOTNOTE 1] a case involving a French party, that the Hague Evidence Convention does not pre-empt the discovery provisions of the Federal Rules of Civil Procedure. Litigants therefore generally may obtain discovery from foreign parties in a U.S. court simply by serving discovery requests or notices, as in cases involving only domestic litigants. To obtain documents located in France or the deposition testimony of a party’s employees residing there, an American litigator need not resort to the more cumbersome (and far less useful) Hague process. Outside the United States, the Aerospatiale decision was criticized as showing disrespect to the sovereignty of other Hague signatories.[FOOTNOTE 2]
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