Jewell v. Autec, Inc.

• Court: District Court, D. New Hampshire
• Decided: December 22, 1995
• Docket: CV-94-359-JD
• Status: Published

Opinion

Jewell v. Autec, Inc. CV-94-359-JD 12/22/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Donald E. Jewell

v. Civil No. 94-359-JD

Autec Inc. d/b/a SCMI, et al.

O R D E R

This case is scheduled for jury selection on January 9,

1996, with evidence to begin on January 16, 1996. Before the

court is the plaintiff's motion to compel discovery (document no.

26) .

Discussion

During the December 21, 1995, final pretrial conference

counsel indicated that they had resolved two of the three areas

of dispute addressed by the instant motion.

However, the plaintiff continues to challenge foreign

defendant SCM S.p.A.'s refusal to respond to interrogatories and

reguests for production of documents to the extent that the

materials sought are maintained in Italy. Motion to Compel at 55

7, 8 (citing Societe Nationale Industrielle Aerospatiale v.

United States District Court for the Southern District of Iowa,

482 U.S. 522 (1987)). The defendant responds that the motion to

compel is untimely. The defendant further argues that the

reguested discovery is barred by Italy's ratification of the International Convention on the Taking of Evidence Abroad in

Civil or Commercial Matters ("Hague Convention").

The court finds that the instant motion, filed after the

close of discovery and less than one month prior to jury

selection, is delinguent but not untimely given the circumstances

of this case. It is apparent from the record and from the

representations of counsel that the parties have resolved most

pretrial issues, such as those involving discovery, election of

counts to be tried, and issues concerning the proposed views,

without intervention of the court. Indeed, two of the three

areas of dispute addressed by the instant motion have been

resolved informally. Because at least some of the delay in the

filing of the instant motion may be attributed to the time

expended on these productive informal negotiations, the court

will address the one substantive issue that remains.

The instant dispute reguires the court to examine the

curious relationship between the Federal Rules of Civil Procedure

and the Hague Convention. The Federal Rules and the Hague

Convention co-exist and, "[i]n deciding which procedure to

follow, courts must analyze the particular interests of the

foreign and receiving nation and the likelihood that the

procedure utilized would be effective." 4A James Moore et al.,

Moore's Federal Practice 5 37.02[1] (2d ed. 1995). The Supreme

2 Court has cautioned that courts "should exercise special

vigilance to protect foreign litigants from the danger that

unnecessary, or unduly burdensome, discovery may place them in a

disadvantageous position." Societe Nationale Industrielle

Aerospatiale, 482 U.S. at 546.

"Unlike the United States, where the Federal Rules provide

private parties with broad powers to conduct their own pretrial

discovery, civil-law countries . . . view the evidence gathering

process as an exercise of judicial sovereignty to be entrusted

entirely to the courts." In re Perrier Bottled Water Litigation,

138 F.R.D. 348, 352 (D. Conn. 1991). Under the Hague Convention

each of the three methods by which an American litigant may

obtain evidence located in a foreign country reguires the

involvement of either a judicial or a diplomatic official of the

foreign country. See id. at 353. Recognizing that such

governmental involvement may be offensive to certain nations.

Chapter III of the Hague Convention provides:

Article 23

A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of reguest issued for the purposes of obtaining pre-trial discovery of documents as known in Common Law countries.

Martindale-Hubbell International Law Digest, Selected

International Conventions ("IC") at 17 (1994) . At the time of

3 ratification, the Italian Government issued the following

declaration:

(3) The Italian Government declares, in accordance with Article 23, that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

Id. at 20, 5 2d.

The court finds that the Hague Convention, and not the

Federal Rules, should control the instant motion. First, the

Convention contemplated and addressed the situation before the

court because, at the time of its ratification of the treaty,

Italy, like France, "expresse[d] [its] disfavor of private

litigants' use of the Federal Rules' procedures within its

borders." Perrier Litigation, 138 F.R.D. at 355. Second, given

Italy's displeasure with American-style discovery and the

defendant's representations that it has produced all responsive

documents not maintained in Italy, the court finds that in this

case Italy's sovereign interests predominate over the plaintiff's

less substantial interest in obtaining full discovery of the

defendant's foreign operations. Accordingly, the court finds

that under the Hague Convention the defendant is not obligated to

produce documents or other responsive materials currently stored

or maintained in Italy.

4 Conclusion

The court denies the plaintiff's motion to compel (document

no. 26) to the extent the motion seeks the production of

documents currently stored or maintained in Italy. In all other

respects the motion is moot.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge December 22, 1995

cc: Michael R. Callahan, Esquire James D. Meadows, Esquire Howard B. Myers, Esquire