Societe Nationale Industrielle Aerospatiale, In re

• Citation: 782 F.2d 120
• Decision Date: 22 January 1986
• Docket Number: No. 85-2306,85-2306
• Parties: , 3 Fed.R.Serv.3d 1275 In re SOCIETE NATIONALE INDUSTRIELLE AEROSPATIALE and Societe de Construction d'Avions de Tourism, Petitioners.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 120

782 F.2d 120

54 USLW 2408, 3 Fed.R.Serv.3d 1275

In re SOCIETE NATIONALE INDUSTRIELLE AEROSPATIALE and

Societe de Construction d'Avions de Tourism, Petitioners.

No. 85-2306.

United States Court of Appeals,

Eighth Circuit.

Jan. 22, 1986.

Before McMILLIAN, ARNOLD, and FAGG, Circuit Judges.

FAGG, Circuit Judge.

Societe Nationale Industrielle Aerospatiale and Societe de Construction d'Avions de Tourism (Petitioners), corporate defendants in a civil action pending in the United States District Court for the Southern District of Iowa, have petitioned this court under Rule 21(a) of the Federal Rules of Appellate Procedure for a writ of mandamus directed at United States Magistrate Ronald E. Longstaff. We conclude that the petition should be denied.

I. PROCEDURAL BACKGROUND

The Petitioners, corporations owned by the Republic of France, design, manufacture, and market aircraft. Although the Petitioners design and manufacture their aircraft in France, they advertise and sell their aircraft in the United States. In 1980, an aircraft sold by the Petitioners was involved in an accident near New Virginia, Iowa. As a result of this accident, Dennis Jones, John George, and Rosa George (collectively "Plaintiffs") instituted actions for damages against the Petitioners. These actions were consolidated and are pending in the United States District Court for the Southern District of Iowa. Upon the parties' consent, the district court referred the actions to a magistrate in accordance with 28 U.S.C. Sec. 636(c)(1).

The Plaintiffs served the Petitioners with a series of interrogatories, requests for admissions, and requests for production of documents under the Federal Rules of Civil Procedure. The Petitioners moved for a protective order contending that, to the extent they possessed the documents or information requested by the Plaintiffs, the material was located in France. Thus, the Petitioners argued that the Plaintiffs must conduct their discovery in accordance with the procedures set forth in the Multilateral Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444 ("Hague Convention" or "Convention"), to which the United States and France are signatories. The Petitioners also insisted that they should not be required to comply with the Plaintiffs' discovery requests, because to do so could subject the Petitioners to criminal liability under French Penal Code Law No. 80-538, Art. 1-bis ("French Blocking Statute"). The magistrate denied the Petitioners' motion for a protective order and ordered the Petitioners to comply with the Plaintiffs' discovery requests. The Petitioners then filed this application for a writ of mandamus, and the magistrate's order has been stayed pending a decision from this court.

II. JURISDICTION

Mandamus review generally is available only in extraordinary situations, Kerr v. United States, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); Central Microfilm Service Corp. v. Basic/Four Corp., 688 F.2d 1206, 1212 (8th Cir.1982), cert. denied, 459 U.S. 1204, 103 S.Ct. 1191, 75 L.Ed.2d 436 (1983), and is not ordinarily available to obtain immediate appellate review of an interlocutory discovery order. Kerr, 426 U.S. at 402-03, 96 S.Ct. at 2123-24; In re Burlington Northern, Inc., 679 F.2d 762, 767-68 (8th Cir.1982); Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 599 (8th Cir.1977), modified on other grounds, 572 F.2d 606, 611 (8th Cir.1978) (en banc). However, mandamus review may be appropriate to provide guidelines for the resolution of novel and important questions presented in the discovery order that are likely to recur. Central Microfilm, 688 F.2d at 1212, citing Schlagenhauf v. Holder, 379 U.S. 104, 111-12, 85 S.Ct. 234, 238-39, 13 L.Ed.2d 152 (1964); La Buy v. Howes Leather Co., 352 U.S. 249, 254-55, 258, 77 S.Ct. 309, 312-13, 314, 1 L.Ed.2d 290 (1957); General Motors Corp. v. Lord, 488 F.2d 1096, 1099 (8th Cir.1974). See also Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv.L.Rev. 595 (1973).

This is the first time this court has been called upon to consider the novel and important questions concerning the interplay between the Federal Rules of Civil Procedure, the Hague Convention, and the French Blocking Statute. In addition, because the Plaintiffs are in the initial stages of discovery, and because the nature of the discovery requests at issue indicate that the answers generated from these requests may necessitate further discovery, we believe the questions presented here may well recur prior to any opportunity to review a final judgment. Thus, we conclude that this is an appropriate situation for mandamus review, and accordingly we will consider the petition on the merits.

III. THE HAGUE CONVENTION

Unlike the practice in the United States and other common law countries where pretrial discovery is considered a private matter primarily conducted by attorneys, France and other civil law countries regard discovery as a judicial function, to be accomplished by the courts. An attempt by an attorney from a common law country to gather evidence in a civil law country for a proceeding abroad has been considered an unlawful usurpation of the public judicial function, and an illegal intrusion on that nation's judicial sovereignty. Compagnie Francaise D'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 26 (S.D.N.Y.1984); Edwards, Taking of Evidence Abroad in Civil or Commercial Matters, 18 Int'l & Comp.L.Q. 646, 647 (1967).

In response to this problem, the Hague Convention was designed to accommodate the civil law signatories' concerns for judicial sovereignty with the needs of litigants to collect evidence within those countries. To effectuate this purpose, the drafters of the Hague Convention provided procedures for the taking of evidence that would be "tolerable" in the country where the discovery takes place and "utilizable" in the forum country. See Report of the United States Delegation to the Eleventh Session of Hague Conference on Private International Law, 8 Int'l Legal Materials 785, 806 (1969); Amram, The Proposed Convention on the Taking of Evidence Abroad, 55 A.B.A.J. 651, 652 (1969). Although foreign participation in drafting the Hague Convention stemmed from a perception that discovery efforts by American litigants were excessively broad and intrusive on the foreign countries' judicial sovereignty, United States participation was prompted by the frustration American lawyers had experienced in obtaining evidence in the foreign countries. Comment, The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: The Exclusive and Mandatory Procedures for Discovery Abroad, 132 U.Pa.L.Rev.1960, 1965 (1984); Amram, 55 A.B.A.J. at 651. Of course, the civil law signatories' concern for judicial sovereignty would only be threatened when discovery procedures that are typically considered a judicial function are actually undertaken within the signatories' borders by a private party.

The Petitioners contend that because the Hague Convention is an international treaty specifically designed to accommodate the differences in the taking of evidence between common law and civil law countries, it provides the exclusive and mandatory procedures for obtaining documents and information located within the territory of a foreign signatory. Alternatively, the Petitioners argue that principles of international comity dictate that the Hague Convention be the method of first resort to gather information abroad, until it becomes apparent that such efforts will be futile.

Although a minority of courts have adopted the position advanced by the Petitioners, in our opinion the better rule, which has been adopted by the vast majority of courts, is that when the district court has jurisdiction over a foreign litigant the Hague Convention does not apply to the production of evidence in that litigant's possession, even though the documents and information sought may physically be located within the territory of a foreign signatory to the Convention. In particular, we agree with the analysis of the Fifth Circuit in In re Anschuetz & Co., GmbH, 754 F.2d 602 (5th Cir.1985), petition for cert. filed, 54 U.S.L.W. 3084 (U.S. Aug. 13, 1985) (No. 85-98), that

[T]he Convention does not require deference to a foreign country's judicial sovereignty over documents, people, and information--if this is really how civil law judicial sovereignty is understood--when such documents are to be produced in the United States. * * * "[D]iscovery does not 'take place within [a state's] borders' merely because documents to be produced somewhere else are located there. Similarly, discovery should be considered as taking place here, not in another country, when interrogatories are served here, even if the necessary information is located in the other country."

In essence, matters preparatory to compliance with discovery orders in the United States, even where the preparatory acts occur in foreign nations, do not constitute discovery in the foreign nation as addressed by the Hague Convention.

Anschuetz, 754 F.2d at 611 (quoting Graco, Inc. v. Kremlin, Inc., 101 F.R.D. 503, 521 (N.D.Ill.1984)) (footnote omitted).

The discovery sought in this case neither intrudes on nor threatens French judicial sovereignty or custom. The magistrate's order does not require any foreign attorneys to appear in France to conduct discovery procedures that are typically considered a judicial function by France and other civil law countries. The order simply requires the Petitioners, who are parties subject to the jurisdiction of a United States court, to perform certain acts preparatory to the production of documents and information in the United States. These acts do not require any French judicial participation. Hence, we conclude that the Hague Convention does not apply to the...