Extraterritorial Discovery and the Hague Evidence Convention after Socijtd Nationale Industrielle Aerospatiale: An American Interests Approach to Comity

Abstract

Extraterritorial discovery between litigants located in different nations has long been a source of conflict in foreign relations. Such discovery efforts not only can be costly and cumbersome, but also may be perceived by foreign nations as infringing upon their sovereign rights. In 1968, in an attempt to resolve this problem, the United States and twenty-three other countries met at the Hague and drafted the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. The Convention, which the United States and nineteen other nations have signed, outlines specific procedures by which member states may obtain evidence located in the territory of other signatories. United States courts, however, dissatisfied with the Convention's procedures, have repeatedly disregarded them, resorting instead to the discovery procedures prescribed in the Federal Rules of Civil Procedure. In turn, many foreign countries have revived their protests that the extraterritorial application of the Federal Rules impinges upon their sovereignty.