Euromepa S.A. v. R. Esmerian, Inc.

JACOBS, Circuit Judge,

dissenting:

I respectfully dissent. The majority opinion asks to what degree federal district courts “should delve into the mysteries of foreign law” in deciding petitions for discovery under 28 U.S.C. § 1782(a). I would re-frame the question presented on this appeal to ask what inquiry concerning the foreign forum and its discovery mechanisms is appropriate where the petition under section 1782 seeks American-style discovery: whole categories of documents and multiple depositions.1

In its answer, the majority opinion alters law and precedent in three ways that are unnecessary and unwise. First, we have previously recognized that the discoverability abroad of material sought to be discovered here is a useful tool assisting district court discretion; the majority opinion rules that the relevance of that factor is “quite limited”, and proceeds to disregard it. Second, we have previously counseled deference to attitudes of the foreign forum toward discovery; the majority opinion withdraws such deference except where there is “authoritative proof’ that the foreign tribunal would “reject” our granting discovery assistance. Third, the majority opinion effectively limits the district court’s statutory discretion to the crafting of “closely tailored discovery order[s] rather than [the denial of] relief outright.”

*1103I prefer the district court’s approach. See Application of Euromepa, S.A., 155 F.R.D. 80 (S.D.N.Y.1994). The district court evaluated the request for discovery assistance in light of the contesting parties (the plaintiff and defendant abroad), the nature of the material sought (extensive), the status of the foreign proceeding (on appeal), the overall scope and role of discovery in the foreign forum (curtailed), and its attitude toward American-style discovery (disfavor). After reviewing these factors, the district court concluded that “granting [MEPA’s] petition would infringe on the French courts while not promoting the efficiency of the pending appeal in France.” Id at 84. That approach is consonant with the purpose and design of the statute.2

A. Discoverability. Other circuits have read into section 1782 the requirement that the discovery sought here be of a kind discoverable in the foreign forum. See In re Application of Asta Medica, S.A., 981 F.2d 1, 7 (1st Cir.1992); Lo Ka Chun v. Lo To, 858 F.2d 1564, 1566 (11th Cir.1988). We have ruled that discoverability in the foreign jurisdiction is not a prerequisite to granting a section 1782 request for assistance, but that it is a “useful tool” for the district judge in exercising discretion. See In re Application of Aldunate, 3 F.3d 54, 60, 62 (2d Cir.), cert. denied — U.S. -, 114 S.Ct. 443, 126 L.Ed.2d 376 (1993). Here, the district court expressly stated that it was not relying on whether the material sought by MEPA was discoverable under the laws of France,3 and proceeded to consider the issue in light of the “twin aims” of the statute: to “balance ... the policy of not infringing upon a foreign nation’s procedural rules with the policy of promoting the efficient resolution of dispute in a foreign tribunal.” Euromepa, 155 F.R.D. at 82. In so doing, the district court observed that “MEPA failed to even attempt to use the mechanism provided by French procedure for obtaining documents.” Id. at 83. The majority opinion re-easts that observation as an impermissible requirement that MEPA exhaust its efforts to obtain this discovery in France before seeking section 1782 assistance, and emphasizes that the relevance of discoverability is “quite limited”. I think that it was appropriate for the district court to consider that American discovery is sought here — by one party against another party — as a substitute for discovery in France rather than as an aid and supplement to the procedures of a French tribunal. MEPA’s petition was filed after the conclusion of the trial in France. Whatever pretrial discovery is or is not permitted under French law, it is undisputed that MEPA took no step under Frenclí procedure for obtaining this discovery at issue prior to the entry of judgment. Now, MEPA seeks to conduct broad gauge, category by category, American-style discovery, citing a French appellate rule allowing additional documents to be submitted for the first time on appeal.

B. Avoiding Offense to Foreign Tribunals. We have emphasized that allowing section 1782 petitions to be filed by “any interested person” represents an “effort to liberalize the assistance provided by American courts to foreign and international tribunals.” In re Malev Hungarian Airlines, 964 F.2d 97, 101 (2d Cir.) (emphasis added), cert. denied — U.S. -, 113 S.Ct. 179, 121 L.Ed.2d 125 (1992). The statute should not become an instrument of unilateral advantage as between the parties. It is therefore useful for the district court to inquire into the “nature and attitudes” of the foreign jurisdiction towards discovery. See Aldunate, 3 F.3d at 59. It seems undisputed that *1104the French tolerate only the most circumscribed exchange of information: oral examination of witnesses only by a judge; and disclosure of specified documents rather than exploratory discovery and, even so, only with judicial intervention. The district court’s brief review of the nature and attitudes of the French toward discovery bears upon an important discretionary value: whether the discovery sought here aids the proceedings abroad or whether it distorts the adversarial symmetry existing there. In my opinion, we should not “countenance the use of U.S. discovery procedures to evade the limitations placed on domestic pre-trial disclosure by foreign tribunals.” John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 136 (3d Cir.1985).

We have previously recognized that one policy consideration underlying section 1782 is “maintaining the balance between litigants that each nation creates within its own judicial system, preventing circumvention of foreign restrictions on discovery and avoiding offense to foreign tribunals.” Aldunate, 3 F.3d at 60. “Congress intended that these concerns be addressed by a district judge’s exercise of discretion.” Id. Therefore, one important inquiry under Aldunate is whether the grant of section 1782 discovery would circumvent the forum’s procedures or be an affront to the foreign tribunal.

The majority opinion states: “We do not believe that an extensive examination of foreign law regarding the existence and extent of discovery in the forum country is desirable in order to ascertain the attitudes of foreign nations to outside discovery assistance.” In this way, the majority holds that a district court errs by inquiring too extensively into a subject we held to be appropriate and useful in Aldunate. With all due respect, I think this offers little guidance to the district court, and in effect displaces the discretion conferred on the district court by statute.

The majority cites Professor Smit’s sound view that United States courts should not undertake to achieve a mastery of foreign law subtleties “for the purpose of honoring a simple request for assistance.” However, the district court’s overview did not place the court in the role of administering French law. And MEPA’s petition is no simple request for assistance: MEPA seeks broad gauged discovery against its adversary, conducted entirely in the United States.

Professor Smit’s view does not discourage inquiry into the “nature and attitudes” of the foreign forum in order avoid “an affront to foreign tribunals.” Aldunate, 3 F.3d at 59, 61. The majority opinion chokes off any discretion on this, however, by limiting the district court’s inquiry to “authoritative proof that a foreign tribunal would reject evidence obtained with the aid of Section 1782.” And any such proof must be “embodied in a forum country’s judicial, executive or legislative declarations that specifically address the use of evidence gathered under foreign procedures.” This rigid formulation narrows useful discretion and invites friction with the courts of other countries, without avoiding the entanglement of American courts in the subtleties of foreign law: it is no easy task to determine what expressions by foreign courts or governments are “authoritative” and whether they authoritatively dispose of a particular petition for discovery. For example, the courts of France may well approve the discovery of a bill of lading from a non-party in the United States without intending that the parties to French lawsuits be drawn into the coils of American discovery.

The majority opinion points out that a foreign court can always enjoin a party subject to its jurisdiction from pursuing discovery in the United States, and looks forward to “an on-going dialogue between the adjudicative bodies of the world community”. On the whole, I think it may be unwise to stimulate declarations about the American system of discovery by foreign countries and tribunals. In any event, even if such a dialogue elicited categorical statements of position, I do not think that the statutory discretion of the district court should be narrowed on the theory that any resulting impairment of foreign procedures will elicit a corrective order or declaration from abroad.

C. Permissible Limitations. I agree with the majority that in many instances the misgivings of a district court in granting a petition under section 1782 can be reconciled by a closely tailored discovery order. (Indeed, this may be the only substantial re*1105maining area of discretion under the majority opinion.) The majority invites the district court to consider two provisos, neither of which seems to me practical or useful. The majority recognizes that French procedure discourages examination of documents that a party does not intend to offer in evidence, and that MEPA’s document request casts a much broader net. The majority points out that the district court is free to require that ah of the evidence gathered by MEPA in the United States be submitted to the French court, whether or not that material assists MEPA’s cause. I think it makes little sense to contrive a hybrid Franco-American system by which mass discovery of inadmissible materials gathered under the American model is permitted to go forward on condition that the inadmissible material be submitted in bulk to the French court. In this way, we both interfere with French discovery practice and clog the French appeals court with the random harvest of the American discovery.

The majority offers a second means of mitigating the effects of one-sided American discovery by conditioning the petitioner’s discovery in America on an undertaking by the petitioner to furnish a reciprocal exchange of information in the United States. In this way, the entire discovery process is imported to the United States, and the procedures of the foreign forum are completely superseded, at least until such time as the foreign tribunal orders the petitioner to desist.

The majority does not advert to the only procedural device expressly approved by this court that may alleviate the effects of the majority opinion. The majority in Malev emphasizes that the district court may require a petitioner under section 1782

to prepare a discovery plan, make a showing that the discovery is “not obtainable from such other source that is more convenient, less burdensome, or less expensive,” such as the [foreign] court, and then require [the petitioner] to take the discovery plan before the [foreign] court for a deter-. ruination as to which requests are relevant before coming to the United States district court for actual discovery.

Malev, 964 F.2d at 102. Given the now narrowed scope of district court discretion in this circuit, this device may become the best instrument for avoiding the day when United States courts become “global ‘Special Masters for Discovery.’ ” Id. at 103 (Feinberg, J., dissenting).

. The petitioner seeks the deposition of unspecified employees of Ralph Esmerian, Inc. and sixteen categories of documents relating to the jewelry that is the subject matter of the litigation in France, e.g.:

* * * * * *
6. Documents, communications, memoranda, correspondence, contracts, invoices, sales agreements, or entrastments, between Esmeri-an and others relating to the Jewelry during the years 1988 to the present.
7. Documents, communications, memoranda, correspondence, contracts, invoices, or other written material among or between or reflecting communications among or between Esme-rian, Wolfers, Wolfers Zug, Fakhreddin, Corvi-na, Guillaume, and George Chalhoub, MEPA and/or Allied.
H: ‡ ‡ *
10. All documents which substantiate the exact amount of loss that Esmerian allegedly suffered. '

. The Senate Report accompanying the 1964 amendments to section 1782 state that

[Section 1782(a)] leaves the issuance of an appropriate order to the discretion of the court which, in proper cases, may refuse to issue an order or may impose conditions it deems desirable. In exercising its discretionary power, the court may take into account the nature and attitudes of the government of the country from which the request emanates and the character of the proceedings in that country.

S.Rep. No. 1580, 88th Cong., 2nd Sess. (1964), reprinted in 1964 U.S.Code Cong. & Admin.News 3782, 3788 (emphasis added).

. The district court expressly stated:

Whether the evidence MEPA seeks would be discoverable in France or not is unknown and irrelevant to me. My decision is based on the determination that granting this petition would be an unwarranted intrusion into France's system of evidence gathering.

Euromepa, 155 F.R.D. at 84 n. 2.