Benton Graphics v. Uddeholm Corp.

118 F.R.D. 386, 10 Fed. R. Serv. 3d 114, 1987 U.S. Dist. LEXIS 13034, 1987 WL 33111
CourtDistrict Court, D. New Jersey
DecidedNovember 30, 1987
DocketCiv. A. No. 86-0421(CSF)
StatusPublished
Cited by13 cases

This text of 118 F.R.D. 386 (Benton Graphics v. Uddeholm Corp.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benton Graphics v. Uddeholm Corp., 118 F.R.D. 386, 10 Fed. R. Serv. 3d 114, 1987 U.S. Dist. LEXIS 13034, 1987 WL 33111 (D.N.J. 1987).

Opinion

OPINION

FREDA L. WOLFSON, United States Magistrate.

This litigation involves allegations of fraud and breach of contract against several defendants, including two Swedish Companies, Uddeholms, A.B. and Uddeholm Strip Steel, A.B. The plaintiff, Benton Graphics, Inc., originally brought the instant motion on for an order compelling responses to interrogatories and the production of documents. The defendants opposed this motion claiming that the principles of comity required that discovery must first be sought under the applicable Hague Convention procedures. Because the United States Supreme Court was then considering the interplay of the Federal Rules of Civil Procedure and the Hague Convention in Societe Nationale Industrielle Aeros-patiale v. U.S. District Court, — U.S. -, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987), I stayed my decision until that case was decided. Aerospatiale was decided on June 15, 1987 and I subsequently asked the parties to submit papers regarding the most expeditious and fair manner of proceeding with discovery in light of the Court’s decision. Supplemental briefs have been received and the motion is now properly before this court for resolution.

In Aerospatiale, the Supreme Court rejected the position that a party would first be required to utilize Hague Convention procedures whenever discovery is sought of a foreign litigant. However, the Court also rejected the position that the Convention is never applicable when discovery is sought abroad. Rather, the court adopted an intermediate case-by-case approach.

The Court found that “the text of the Evidence Convention as well as the history of the proposal and ratification by the United States unambiguously supports the conclusion that it was intended to establish optional procedures that would facilitate the taking of evidence abroad.” Aerospatiale, — U.S. at-, 107 S.Ct. at 2553, 96 L.Ed.2d at 480. According to the Court, these optional procedures did not deprive a district court of the jurisdiction it otherwise possessed to order a party to produce evi[388]*388dence located in a signatory country. Id. at-, 107 S.Ct. at 2553, 96 L.Ed.2d at 481. However, the Court did find that “the Hague Convention does ‘apply’ to the production of evidence in a litigant’s possession in the sense that it is one method of seeking evidence that a court may elect to employ”. Id. at-, 107 S.Ct. at 2554, 96 L.Ed.2d at 482. Nonetheless, the court declined to find that comity requires resort to Hague Evidence Convention Procedures “without prior scrutiny in each case of the particular facts, sovereign interests, and likelihood that resort to those procedures will prove effective.” Id. at-, 107 S.Ct. at 2556, 96 L.Ed.2d at 484.

While stating that resort to convention procedures was only optional the Court observed that “some discovery procedures are much more intrusive than others”. Id. at-, 107 S.Ct. at 2556, 96 L.Ed.2d at 484-85. Therefore, district courts must take special care to ensure that foreign litigants are not subject to unnecessary or unduly burdensome discovery. Due respect must be accorded special problems encountered by a foreign litigant because of its nationality, location, or any sovereign interest expressed by a foreign state. Id. at-, 107 S.Ct. at 2556-57, 96 L.Ed.2d at 485.

However, while emphasizing that careful consideration must be given to a foreign litigant’s claim of abusive discovery the Court held that, “[e]ven if a court might be persuaded that a particular document request was too burdensome or too ‘intrusive’ to be granted in full, with or without an appropriate protective order, it might well refuse to insist upon the use of Convention procedures before requiring responses to simple interrogatories or requests for admissions. 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-, 107 S.Ct. at 2556, 96 L.Ed.2d at 485.

In sum, the Hague Convention is an optional procedure that may be utilized by a district court after considering 1) the particular facts of the case, 2) the sovereign interests involved and 3) the likelihood that resort to the Convention would be an effective discovery device. Whether a particular document request is too burdensome is left to the sound discretion of the trial court in light of the facts of the case, and the respective interests of the parties and foreign governments involved.

In the instant motion, a major dispute is whether either party carries the burden in determining whether the Federal Rules or Convention procedures should be followed. The plaintiff claims that the Supreme Court’s analysis in Aerospatiale strongly suggests that the party seeking to supplant the Federal Rules with the Convention must demonstrate its reasons. Plaintiff relies on the Court’s rejection of the position that the Hague Convention never applies to foreign litigants over which the court has jurisdiction because “such a rule would deny the foreign litigant a full and fair opportunity to demonstrate appropriate reasons for employing the Convention procedures in the first instance.” Id. at-, 107 S.Ct. at 2557, 96 L.Ed.2d at 486. Thus, the plaintiff argues that parties seeking to invoke the Convention are required “to demonstrate appropriate reasons for employing the Convention” in lieu of the federal rules.

On the other hand, the defendants contend that the burden rests with the party who seeks to avoid using Convention procedures. Specifically, defendants argue that a party seeking discovery outside the Convention should be required to show by clear and convincing evidence that the Convention’s procedures would be inefficient or unnecessarily burdensome. Anything less, according to the defendants, would derogate from the United States’ obligations under the Convention and violate the judicial sovereignty of Sweden. Essentially, the defendants would like to adopt the position of the four justices who filed an opinion dissenting in part and concurring in part.

While the majority opinion is not crystal clear on the issue of who bears the [389]*389burden of establishing which discovery procedure to utilize, I agree with the plaintiff that the party seeking to utilize Convention procedures must demonstrate appropriate reasons.1 Id. at-, 107 S.Ct. at 2557, 96 L.Ed.2d at 486. But see, Hudson v. Her-mann Pfauter GmbH & Co., 117 F.R.D. 33 (N.D.N.Y.1987).2 This is consistent with the policy expressed by the Court in Aeros-patiale that foreign competitors voluntarily marketing their product in the United States should be subject to the same judicial burdens as their domestic counterparts. Id. at-n. 25, 407 S.Ct. at 2553 n. 25, at 481 n. 25. If foreign litigants seek resort to the Convention, fairness requires that they have the burden of proof. Therefore, foreign litigants attempting to supplant the federal rules with Convention procedures must demonstrate why the particular facts and sovereign interests support using the Convention. They must also demonstrate that resort to these procedures will prove effective.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Procom America, LLC
M.D. Florida, 2022
In re Activision Blizzard, Inc.
86 A.3d 531 (Court of Chancery of Delaware, 2014)
In Re Automotive
Third Circuit, 2004
In Re Vitamins Antitrust Litigation
120 F. Supp. 2d 45 (District of Columbia, 2000)
Husa v. Laboratoires Servier SA
740 A.2d 1092 (New Jersey Superior Court App Division, 1999)
Valois of America, Inc. v. Risdon Corp.
183 F.R.D. 344 (D. Connecticut, 1997)
Knight v. Ford Motor Co.
615 A.2d 297 (New Jersey Superior Court App Division, 1992)
In Re Asbestos Litigation
623 A.2d 546 (Superior Court of Delaware, 1992)
In re Perrier Bottled Water Litigation
138 F.R.D. 348 (D. Connecticut, 1991)
Rich v. KIS California, Inc.
121 F.R.D. 254 (M.D. North Carolina, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
118 F.R.D. 386, 10 Fed. R. Serv. 3d 114, 1987 U.S. Dist. LEXIS 13034, 1987 WL 33111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benton-graphics-v-uddeholm-corp-njd-1987.