International Society for Krishna Consciousness, Inc. v. Lee

105 F.R.D. 435, 1984 U.S. Dist. LEXIS 23719
CourtDistrict Court, S.D. New York
DecidedSeptember 11, 1984
DocketNo. 75 Civ. 5388 (MJL)
StatusPublished
Cited by10 cases

This text of 105 F.R.D. 435 (International Society for Krishna Consciousness, Inc. v. Lee) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
International Society for Krishna Consciousness, Inc. v. Lee, 105 F.R.D. 435, 1984 U.S. Dist. LEXIS 23719 (S.D.N.Y. 1984).

Opinion

MICHAEL H. DOLINGER, United States Magistrate:

A. Introduction

Plaintiffs in this venerable lawsuit challenge the policy of the Port Authority and numerous domestic and foreign airlines that prohibits them from engaging in leaf-letting and other First Amendment activities in the public areas of the terminals at Newark, La Guardia, and J.F.K. International Airports. Following a remand earlier this year by the United States Court of Appeals for the Second Circuit, see International Society for Krishna Consciousness, Inc. v. Air Canada, 727 F.2d 253 (2d Cir.1984), this matter was referred to me by the Honorable Mary Johnson Lowe, United States District Judge, for all pre-trial purposes.

After the referral by the District Court, a pre-trial conference was held on May 24, 1984, at which time an expedited discovery schedule was established, in deference to the instruction of the Court of Appeals “to give the case high priority in view of the lapse of time.” 727 F.2d at 257 n. 2. That discovery has apparently been proceeding apace,1 but one of the defendants, Lufthansa German Airlines (“Lufthansa”) has now raised, for the first time, a procedural defense to the plaintiffs’ request for production of documents and, by implication, to all other discovery requests in this case to be addressed to Lufthansa.

Specifically, Lufthansa claims that, inasmuch as it is “a corporation organized and existing under the law of the Federal Republic of Germany,” all discovery requests to it must comply with the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 28 U.S.C.A. § 1781 note (Supp.1984). See Affidavit of Alan A. D’Ambrosio, Esq. sworn to July 3, 1984 at II3. According to Lufthansa, the Convention requires, inter alia, that discovery requests be in the form of a Letter of Request from the “judicial authority of a Contracting State” to “the competent au-tority [sic]” of the state whose national is the subject of the discovery request, D’Am-brosio Affidavit at 114 (quoting the Hague Evidence Convention, Ch. 1, Art. 1), that the letter specify all items of information sought and that it “be issued in the language of the authority requested to execute it, or be accompanied by a translation in that language.” D’Ambrosio Affidavit at 114.

In substance Lufthansa contends that, by virtue of the Hague Convention, discovery against a party defendant may not proceed under the ordinary federal rules of discovery if the defendant is a foreign national. This prohibition, it asserts, applies regardless of whether the information sought to be discovered is available in the United States or must be obtained from a foreign country.

For the reasons that follow, Lufthansa’s motion for a protective order is denied. The Hague Convention does not affect discovery of information in the United States. With respect to information available only from foreign countries, its application is discretionary with the Court, and in the circumstances of this case resort to the Convention for document and interrogatory discovery should not be required.2

B. The Hague Convention

By common law and statute, the United States has long provided a variety of means for the pre-trial discovery of infor[438]*438mation from other countries. As reflected, for example, in Fed.R.Civ.P. 28(b), which concerns specifically the taking of depositions, these have included depositions “on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States ...”, depositions “before a person commissioned by the court”, and depositions pursuant to a letter rogatory.3

In addition, in those cases in which a foreign corporation or individual is a party to a lawsuit in a United States federal court, the courts have repeatedly recognized that they have the authority to compel the party to provide all necessary discovery. This authority is an incident of the court’s jurisdiction over the foreign party, and extends to the requirement that the party provide discovery information obtainable only from its native country. Moreover, this authority to compel disclosure by a party from a foreign country—in either civil or criminal proceedings—is undiminished even in those cases in which the disclosure of such information may violate the laws of the foreign country or subject the disclosing party to civil penalties. See, e.g., Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 204-06, 78 S.Ct. 1087, 1091-1093, 2 L.Ed.2d 1255 (1958); In re Grand Jury Proceedings, 740 F.2d 817, 831-33, (11th Cir.1984); United States v. Vetco, Inc., 691 F.2d 1281, 1286-91 (9th Cir.1981); State of Ohio v. Arthur Anderson & Co., 570 F.2d 1370, 1373 (10th Cir.), cert. denied, 439 U.S. 833 (1978), 99 S.Ct. 114, 58 L.Ed.2d 129; In re Westinghouse Elect. Corp. Uranium Contracts Litigation, 563 F.2d 992, 997 (10th Cir. 1977); Arthur Andersen & Co. v. Finesilver, 546 F.2d 338, 341-42 (10th Cir.1976), cert. denied, 429 U.S. 1096, 97 S.Ct. 1113, 51 L.Ed.2d 543 (1977); In re Grand Jury Proceedings, 532 F.2d 404, 407 (5th Cir. 1976), cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309 (1976); United States v. First National City Bank, 396 F.2d 897, 900-01 (2d Cir.1968); SEC v. Banca Della Svizzera Italiana, 92 F.R.D. 111, 114-17 (S.D.N.Y.1981); In re Uranium Antitrust Litigation, 480 F.Supp. 1138, 1144-45 (N.D.Ill.1979); American Industrial Contracting, Inc. v. Johns-Manville Corp., 326 F.Supp. 879, 880 (W.D.Pa.1971)4 See generally Olsen, “Discovery in Federal Criminal Investigations”, 16 N.Y.U.J. Int’l L. & Pol. 999, 1012-26 (1984); Radvan, “The Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters: Several Notes Concerning its Scope, Methods and Compulsion”, 16 N.Y.U.J. Int’l L. & Pol. 1031, 1053 & n. 111 (1984).

Despite the potential availability of these procedures for obtaining foreign discovery, litigants encountered difficulties in practice when such discovery depended upon the cooperation of foreign governments and legal systems. Unlike the common law countries, the civil and Islamic legal systems do not have equivalent procedures for pre-trial discovery, see e.g., Note, “Obtaining Testimony Outside the United States: Problem for the California Practitioner”, 29 Has[439]*439tings L.J.

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Bluebook (online)
105 F.R.D. 435, 1984 U.S. Dist. LEXIS 23719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-society-for-krishna-consciousness-inc-v-lee-nysd-1984.