Rich v. KIS California, Inc.

121 F.R.D. 254, 1988 U.S. Dist. LEXIS 9090, 1988 WL 71481
CourtDistrict Court, M.D. North Carolina
DecidedJune 22, 1988
DocketNos. C-87-801-WS, C-87-908-WS, C-87-909-WS and C-88-076-WS
StatusPublished
Cited by76 cases

This text of 121 F.R.D. 254 (Rich v. KIS California, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rich v. KIS California, Inc., 121 F.R.D. 254, 1988 U.S. Dist. LEXIS 9090, 1988 WL 71481 (M.D.N.C. 1988).

Opinion

ORDER

RUSSELL A. ELIASON, United States Magistrate.

Two matters are before the Court. Plaintiffs in Civil Action No. C-87-801-WS move to compel discovery from the two foreign litigants, i.e. KIS France, S.A., which is a French corporation, and its Chairman, Serge Crasnianski. In the consolidated actions (for purposes of discovery only), a party seeks to intervene as a plaintiff.

Motion to Compel

Originally, plaintiffs sought to compel defendants to respond to Rule 34, Fed.R. Civ.P., requests for documents and Rule 33, Fed.R.Civ.P., interrogatories. Defendants resisted on two bases. First, they claimed that plaintiffs must procure the evidence in accordance with the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, March 18,1970, 23 U.S.T. 2555, T.I.A.S. No. 7444 (hereinafter referred to as “Hague Evidence Convention”), codified at 28 U.S. C. § 1781 Notes. The Convention establishes a method for pretrial discovery by use of the judicial authorities in the contracting states (such as the United States and France). It tends to be more cumbersome than the direct party-to-party discovery under the Federal Rules of Civil Procedure.1 Second, defendants claim that they are prohibited from producing the evidence by virtue of Article 1A of the French “Blocking Statute” which provides for fine and imprisonment for disobedience.2

[257]*257Plaintiffs’ argue that Societe Nationale Industrielle Aerospatiale v. U.S. District Court, 482 U.S. -, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987), governs this case. There, the Supreme Court held that the Hague Evidence Convention does not provide the exclusive or even preferred method for obtaining discovery information and documents in signatory nations. Defendants counter that in Societe Nationale there was no issue concerning personal jurisdiction over the defendants. Until personal jurisdiction is established, they contend the Federal Rules of Civil Procedure do not apply to them and discovery must proceed as if they were non-parties by use of the Hague Evidence Convention. Alternatively, defendants argue that the circumstances in this case call for plaintiffs to first use the Hague Evidence Convention to obtain the evidence prior to reliance on the Federal Rules of Civil Procedure.

General discovery has not yet begun because defendants contest this Court’s personal jurisdiction over them. Plaintiffs, on the other hand, need discovery on the jurisdictional issue before they can address defendants’ motion to dismiss. Thus, the discovery dispute has assumed somewhat major proportions since it is blocking a decision on the personal jurisdiction issue which, in turn, is delaying discovery on the merits. In an attempt to secure a speedy resolution of the impasse, the Court directed plaintiffs to pare down their requests. They have done so and now only request that defendants answer ten interrogatories. These interrogatories mainly apply to the corporate defendant and are designed to determine matters relevant to personal jurisdiction such as contacts and activities by defendant and its agents in this country. Defendants were requested to consider answering this limited request but have refused to do so.

Discussion

In Societe Nationale Industrielle Aerospatiale v. U.S. District Court, supra, the Supreme Court ruled that foreign litigants could not insist on producing evidence solely through the Hague Evidence Convention, nor could they insist that such procedure be the primary one for directing discovery requests to them. However, use of Convention procedures was authorized. While the Supreme Court did not provide detailed rules for deciding when to require resort to the Convention, its opinion is not wholly without guidance. A district court must consider (1) the particular facts of each case, (2) the sovereign interest involved, and (3) whether resort to the Convention would be an effective discovery device. Id. at-, 107 S.Ct. at 2556, 96 L.Ed.2d at 484. Relevant considerations for any particular case may include factors such as whether the discovery request may be deemed intrusive or simple. Thus, routine interrogatories will likely be permitted pursuant to the Federal Rules of Civil Procedure as opposed to requiring Convention procedures. Id. at-, 107 S.Ct. at 2556, 96 L.Ed.2d at 485. The Court goes on to caution district courts to guard against abusive or unfair discovery to foreign litigants, presumably by use of the protective devices contained in the Federal Rules of Civil Procedure. Id. Should such devices prove ineffective or if the sovereign interest of the foreign state be one deserving recognition, the district courts should consider using Convention procedures.

The proponent of using the Hague Evidence Convention bears the burden of demonstrating the necessity for using those procedures. Id. at-, 107 S.Ct. at 2557, 96 L.Ed.2d at 486; Benton Graphics v. Uddeholm Corp., 118 F.R.D. 386 (D.N.J. 1987).3 Defendants have not satisfied their [258]*258burden. They must demonstrate that plaintiffs discovery requests are intrusive, that an important sovereign interest of France is involved requiring use of the Convention and that use of Convention procedures could be effective.

Because plaintiffs have pared their discovery requests to ten interrogatories limited to the issue of personal jurisdiction, defendants cannot show that the information sought is intrusive. Rather, as it now stands, plaintiffs’ interrogatories fall within that class of case in which the Supreme Court recommended use of the Federal Rules of Civil Procedure. Another reason for using the Federal Rules instead of Convention procedures concerns the immediate need for plaintiffs to have preliminary information concerning the jurisdiction issue. Until jurisdiction is resolved, the lawsuit will stagnate. This favors using the generally more efficient, Federal Rules of Civil Procedure.

Next, defendants fail to show that the discovery is in any way abusive or that using the Federal Rules of Civil Procedure will impinge on an important sovereign interest of the French nation. The only factor defendants present is the French Blocking Statute. See n. 2, supra. However, this statute, which is solely designed to protect French businesses from foreign discovery, is both overly broad and vague and need not be given the same deference as a substantive rule of law. Societe Nationale, supra, 482 at-n. 29, 107 S.Ct. at 2556 n. 29, 96 L.Ed.2d 484 n. 29; Minpeco, S.A. v. Conticommodity Services, Inc., 116 F.R.D. 517, 524 (S.D.N.Y.1987).

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121 F.R.D. 254, 1988 U.S. Dist. LEXIS 9090, 1988 WL 71481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rich-v-kis-california-inc-ncmd-1988.