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The Hague Convention, March 18, 1970, 23 U.S.T. 2555, is intended as a permissive supplement, not a pre-emptive replacement, for other means of obtaining evidence located abroad.
The United States, France, and 15 other countries have acceded to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, March 18, 1970, 23 U.S.T. 2555 (Hague Convention), which prescribes procedures by which a judicial authority in one contracting state may request evidence located in another. Plaintiffs brought suits (later consolidated) in Federal District Court for personal injuries resulting from the crash of an aircraft built and sold by petitioners, two corporations owned by France. Petitioners answered the complaints without questioning the court's jurisdiction, and engaged in initial discovery without objection. However, when plaintiffs served subsequent discovery requests under the Federal Rules of Civil Procedure, petitioners filed a motion for a protective order, alleging that the Hague Convention dictated the exclusive procedures that must be followed since petitioners are French and the discovery sought could only be had in France. A Magistrate denied the motion, and the Court of Appeals denied petitioners' mandamus petition, holding, inter alia, that when a district court has jurisdiction over a foreign litigant, the Hague Convention does not apply even though the information sought may be physically located within the territory of a foreign signatory to the Hague Convention.
Does the Hague Convention provide the exclusive discovery procedures the District Court must use when litigants seek evidence abroad?
The Court held the Hague Convention applied to production of evidence in the litigant's possession but the treaty was not mandatory and exclusive procedure for obtaining documents and information located within the territory of a foreign signatory. Instead, the Hague Convention was a permissive supplement, not a pre-emptive replacement for other methods of obtaining evidence located abroad. Text of the treaty did not speak in mandatory terms to describe procedures for all permissible transnational discovery and required any contracting state to use Hague Convention procedures or compel a contracting state to change its own evidence-gathering procedures. First resort to Hague Convention procedures was not required when the treaty itself made no such requirement and American discovery procedures were often broader.