Assessing Sovereign Interests in Cross-Border Discovery Disputes: Lessons from Aerospatiale

SUMMARY IMAGE FORMULA4 I. INTRODUCTION The process of gathering evidence for use in international litigation often creates jurisdictional conflict. A demand for the production of evidence, whether issued by a court or by a litigant, is an exercise of jurisdiction by a state. When the evidence sought is located abroad, such an exercise of jurisdiction may conflict with the jurisdictional authority of the state in which that evidence is located, because-on a traditional view of sovereignty-each state has the sole and exclusive right to exercise governmental power within its own borders. The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters2 was designed to resolve this conflict in the area of civil litigation. It established certain procedures, including a "letter of request" procedure, intended to simplify and liberalize the process by which courts of one nation could obtain evidence located in another for use in civil cases.3 Its adoption was met with great optimism concerning its potential for reducing conflicts of sovereign authority. Practice over the last twenty years demonstrates that the Convention's promise has not yet been fulfilled. Evidence gathering in civil litigation today remains mired in an ongoing struggle for jurisdictional power. Cases often contain discussions about courts invading the sovereignty of other countries, seeking to deprive each other of jurisdiction, or attempting to foist their procedural systems on unwilling nations. Often, too, U.S. courts IMAGE FORMULA8 order discovery pursuant to U.S. rules rather than Convention procedures, generating criticism by other countries.4 Interestingly, however, this picture is less bleak in other areas. Evidence gathering abroad is not unique to civil litigation: it also takes place in connection with cross-border criminal investigations and regulatory proceedings. In those areas, the issuance of document production orders and the taking of testimony abroad create substantially less friction. Indeed, cooperative instruments now used in those areas were designed with the explicit goal of reducing the frequency with which sovereigns would feel compelled to assert their jurisdictional authority against other states. The United States has ratified bilateral treaties providing for mutual assistance in criminal matters with over twenty-five countries! On the regulatory front, various U.S. agencies, including the Securities and Exchange Commission and the Internal Revenue Service, have entered into bilateral memoranda of understanding with their counterparts in other jurisdictions that call for information sharing and other assistance in cross-border enforcement proceedings. While early cooperation agreements of this type did not disturb the traditional allocation of sovereign power on the basis of territory, newer agreements deliberately move away from that model. They incorporate the concept of "positive comity," under which a state may take affirmative action to protect the regulatory or enforcement interests of an agreement partner. In developing the concept of positive comity, these agreements seek to overcome constraints imposed by, and jurisdictional conflicts created by, a system based on the territorial allocation of enforcement power. The adoption of these measures facilitating evidence gathering in transnational regulatory and criminal proceedings suggests that the development of cooperative, coordinated discovery practices is possible. The question, then, is why evidence gathering remains such a source of conflict in the context of ordinary civil litigation. Some answers to this question surely turn on the differences between private litigation and public enforcement activity. Because government officials are "repeat players," for instance, they have an incentive to foster future cooperation by making reasonable demands; civil litigants, on the other hand, generally have little to lose by acting as aggressively as possible. …