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October 1994
Vol. 5, No. 2
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of Contents
Contents
Obtaining Documents and Testimony in the United States for Use in Foreign
Litigation: 28 U.S.C. 1782
by W. Cameron Beard
I. INTRODUCTION
Section 1782 of Title 28 of the United States Code ("section 1782") provides a mechanism for gathering evidence in the United States for use in a foreign litigation. Section 1782 allows not only foreign courts but also parties to foreign litigations to apply to a United States federal district court for an order directing a witness to give testimony or produce documents. Though section 1782 was not frequently invoked in the past, recent court decisions, which have interpreted the statute liberally in favor of the party seeking to obtain evidence, have made it probable that section 1782 will be used with increasing frequency in the years to come.
Section 1782 is separate and distinct from the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (28 U.S.C. 1781). Thus, section 1782 may be invoked by litigants or courts from countries that are not signatory to the Hague Convention. In addition, it would appear that even litigants from countries that are signatories to the Hague Convention may make use of section 1782, bypassing the customary Hague Convention formalities.1
Section 1782 is interpreted differently by various federal courts within the United States. However, in the Second Circuit, which is probably the most commercially significant American federal jurisdiction from an international perspective, encompassing the federal District Courts in the states of New York, Connecticut and Vermont,2 the following rules have recently been clearly established:
(1) It is permissible under section 1782 for a private party to apply ex parte to a United States district court for an order requiring the production of evidence, without having first sought the same evidence through the court before which the case is pending in the foreign country; and
(2) It is not a precondition to obtaining evidence in the United States pursuant to section 1782 that the evidence sought would be obtainable under the rules regarding the production of evidence applicable in the country from which the request originates.
Stated differently, it may be possible for a foreign litigant to get more in discovery in the United States pursuant to section 1782 (at least in the Second Circuit) than the foreign litigant could obtain in the forum state, and it may be possible to avoid prior recourse to the courts in the forum state before approaching a United States court for assistance.
Section 1782 provides a powerful tool to litigants who wish to obtain evidence in the United States for use in foreign proceedings. Conversely, the statute poses a substantial threat to foreign citizens or commercial entities who have American affiliates -- or who simply have business dealings in the United States -- since records belonging to individuals and entities located permanently or temporarily in the United States may become available under section 1782 to adversaries or competitors. The cited statute is of potential importance for both the aggressive litigator and the concerned corporate counsel.
II. THE STATUTE
The text of section 1782 reads as follows:
Section 1782. Assistance to foreign and international tribunals and to litigants before such tribunals.
(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. ... The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege. ...
III. A PARTY MAY APPLY TO THE UNITED STATES COURT FOR ASSISTANCE PURSUANT TO SECTION 1782 WITHOUT FIRST SEEKING DISCOVERY THROUGH THE COURT IN THE FORUM STATE.
A question might be raised whether a litigant may approach the American court for assistance under section 1782 without first having sought to obtain the desired evidence through the foreign court before which the litigation is pending. It is an established rule, at least within the Second Circuit, that a private litigant in foreign proceedings may apply ex parte to an American court for an order directing the production of evidence in the United States, without first having sought to obtain the desired evidence through the court in the country where the litigation is pending. This rule was confirmed in the case of Application of Malev Hungarian Airlines.3
IV. IS IT A REQUIREMENT THAT THE EVIDENCE SOUGHT IN THE UNITED STATES BE OBTAINABLE UNDER THE LAWS OF THE JURISDICTION IN WHICH THE LITIGATION IS PENDING?
A. The Second Circuit
Perhaps the most controversial question with respect to section 1782 is whether the discovery sought in the United States must be of a type that would be obtainable under the laws of the country in which the litigation is pending. At present, the Second Circuit Court of Appeals appears to stand alone in its position that it is permissible to obtain discovery in the United States under section 1782 even if the materials requested would not be subject to discovery under the laws of the forum state.4 As the Second Circuit stated in 1993 in Application of Gianoli: "[S]ection 1782 does not impose the requirement that the material sought in the United States be discoverable under the laws of the foreign jurisdiction."5
The effects of the stated rule are quite significant. For example, it seems that a federal court within the Second Circuit (i.e., within the states of New York, Connecticut and Vermont) might not enforce the specificity requirements applicable with respect to document production requests that apply in a number of civil law countries. The court might instead allow broad reaching document discovery in accordance with American discovery rules. In other words, it may well be possible to request types and categories of documents relevant to the foreign litigation, rather than requesting specific, identifiable documents, as might otherwise be required under foreign law. In this regard, it should be noted that the general American rule is that materials obtainable through discovery must be relevant, but need not themselves be admissible in court proceedings: The materials sought must be reasonably calculated to lead to the discovery of admissible evidence.
Section 1782 also allows for the taking of testimony from individuals, as well as for the collection of physical evidence. Thus, the statute may make available to the foreign litigant a form of pretrial discovery unknown under the law of the foreign country. For example, the taking of pretrial testimony from third party witnesses is generally not permitted in England, but the taking of such testimony in the United States for use in English proceedings might well be allowed by a federal court within the Second Circuit. Though it is questionable whether a witness who would be available at trial in the forum state could be forced to testify pursuant to subpoena in the United States,6 it seems quite possible that an American federal court, at least one within the Second Circuit, would allow the deposition in the United States of a third party who would not be available at trial overseas. In this connection, it should be noted that American deposition procedure generally allows for a broad range of questioning, and that the opportunities for refusing to answer questions may be quite limited.7
A party may be able to avoid some or all disclosure of materials, even in the Second Circuit, if it can demonstrate to the American court's satisfaction that the requested form of discovery would be considered an affront to the foreign court before which the litigation is being heard, or an affront to the laws of the forum state. This possibility was raised in the Gianoli case, above. It is unclear, however, what evidence the party seeking to avoid discovery on this ground would have to present in order to establish the impropriety of the application. In Gianoli, for example, the court found no affront to the foreign court or to foreign law, deeming it significant that the law of the forum state did not specifically prohibit the gathering of evidence in other jurisdictions through methods lawful in the place where the evidence is sought. Some parties have successfully blocked discovery in recent cases by claiming that to allow discovery here beyond that available under the restrictive discovery rules of the foreign country would be an affront to the foreign courts and legislature. B. Other American Circuits
Several federal Circuit Courts have adopted rules with respect to section 1782 that are quite different from those adopted by the Second Circuit. For example, the First, Third and Eleventh Circuits, as well as the Circuit Court for the District of Columbia Circuit, have all apparently taken the position that only such discovery as would be allowed in the forum state should be allowed in the United States pursuant to section 1782.8
The Ninth Circuit Court of Appeals, oddly enough, has not yet had occasion to address the question whether there is a "discoverability requirement" implicit in section 1782.9 However, a California federal district court (a lower court within the Ninth Circuit), imposed such a discoverability requirement in In re Application for an Order for Judicial Assistance in a Foreign Proceeding in the High Court of Justice, Chancery Division, England.10 The California court, which held that third party discovery should not be allowed in the United States since it would not be allowed in England, based its ruling in part on the reasoning that to allow such discovery would be considered an affront to the English court system. To the extent that the decision rests on this ground, it would seem to be erroneous. The English House of Lords in South Carolina Insurance Co. v. Assurantie Maatschappij "De Zeven Provincien" N.V.11 specifically stated that it had no objection to the collection of evidence by English litigants in the United States pursuant to section 1782. Indeed, the House of Lords stated that "the basic principle underlying the preparation and presentation of a party's case in the High Court in England is that it is for that party to obtain and present the evidence which he needs by his own means, provided always that such means are lawful in the country in which they are used."12
V. THE FOREIGN TRIBUNAL MUST BE ADJUDICATIVE, AND AN ACTUAL PROCEEDING MUST BE CONTEMPLATED.
Two threshold requirements must generally be met by the party seeking discovery in the United States pursuant to section 1782: (1) The tribunal in the foreign country in which the evidence is to be used must be adjudicative in nature; and (2) an actual proceeding must be contemplated at the time the request is made. Both rules, however, are subject to varying interpretations in the different federal circuits.
A. Adjudicative Tribunal
1. General Comments
Section 1782 at one time allowed for the collection of evidence only for use in proceedings before a foreign court. However, the statute now states that the evidence sought may be used in proceedings before a "foreign or international tribunal." This phrase, the result of a 1964 statutory amendment, was intended to make it clear that evidence can be obtained for use in proceedings before bodies other than conventional courts. For example, it is established that evidence may be sought for use before a French juge d'instruction in preliminary proceedings.13
Notwithstanding the foregoing, most courts recognize limits on the types of bodies that come under the definition of "foreign or international tribunal." The general rule is that evidence may be sought pursuant to section 1782 only for use before an "adjudicative" body. Thus, for example, a request for evidence made by prosecuting or tax authorities who intend to use the evidence in preliminary investigations of wrongdoing will generally not be honored under the statute.14 However, even this rule is not universally applied.15
2. Can Evidence be Sought Pursuant to Section 1782 for Use in a Foreign Arbitration?
The question whether an arbitral tribunal is "adjudicative" for purposes of section 1782 has thus far been addressed by only one American court. In a recent decision, the United States District Court for the Southern District of New York determined that a foreign arbitral body constituted a tribunal for purposes of section 1782, and that materials could be obtained in the United States under the statute for use in a foreign arbitration.16 This determination seems appropriate. While the legislative history surrounding the 1964 amendments of section 1782 provide no direct guidance on the question,17 a scholar who was involved with the formulation of the statutory amendments wrote in 1965: "The term 'tribunal' embraces all bodies exercising adjudicatory powers, and includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts."18
It should be noted that the same court which determined that materials can be obtained in the United States for use in a foreign arbitration also determined that such materials could be obtained only pursuant to a directive from the arbitral panel, and refused to grant a application for assistance under section 1782 brought by one of the parties to the arbitration.
B. Imminent Proceedings
As to the stage which proceedings must have reached in the foreign country before relief may be requested under section 1782, it is clear that proceedings need not formally be pending when the section 1782 application is filed. In other words, it may in some cases be possible to obtain discovery even before proceedings have been commenced. There is a divergence, however, between the federal circuits with respect to the precise stage that preparations for a proceeding must have reached before section 1782 may be invoked. In the Second Circuit, an applicant must prove that adjudicative proceedings are "imminent -- very likely to occur and very soon to occur."19 More relaxed rules apply in other jurisdictions. The Ninth Circuit, for example, has allowed invocation of section 1782 even where only preliminary criminal investigations were underway in the foreign country.20 The Eleventh Circuit requires only that the requested evidence "will likely be of use in a judicial proceeding,"21 while the Circuit Court for the District of Columbia suggests that evidence may be gathered under section 1782 where proceedings in the foreign country are "within reasonable contemplation."22
Of particular interest from a civil law perspective is the rule, recognized by the Ninth Circuit Court of Appeals, and apparently not disagreed with by any other court, that evidence may be sought pursuant to section 1782 for use in foreign appellate proceedings, at least where the appellate court allows the parties to present new evidence on appeal.23
VI. WILL THE AMERICAN COURT ORDER THE PRODUCTION OF EVIDENCE PHYSICALLY LOCATED IN A FOREIGN COUNTRY,OR TESTIMONY THE GIVING OF WHICH WOULD VIOLATE FOREIGN LAW?
It is worth considering the interaction of section 1782 with two well-established rules of American case law. The first rule is that an American court has the power to order a witness subject to its jurisdiction to produce documents or other evidence physically located in a foreign country.24 The second is that under certain circumstances an American court will order the production of documents or the giving of testimony by a witness subject to its jurisdiction, even where doing so will force the witness to violate foreign law. There is a question, however, whether these rules, which are usually invoked in litigation conducted within the United States, are applicable where the documents or testimony are sought pursuant to section 1782 for use in a foreign proceeding. A detailed response to this question is beyond the scope of this article; however, the answer will probably vary substantially depending on whether the party being requested to produce documents in a foreign country -- or to testify in violation of foreign law -- is an American citizen or a foreign national, and on the physical location of the evidence requested or the person whose testimony is sought.
With respect to evidence located in a foreign country, there would seem to be a far more compelling basis for an American court to direct an American who has hidden documents in France to produce those documents for use in a Norwegian proceeding, than there would be for the same court to order a Frenchman, nominally subject to the American court's jurisdiction by virtue of his temporary presence within the United States, to produce documents kept in France in the ordinary course of business, for use in the same Norwegian proceedings. Similarly, an American court might well be more willing to order an American corporation to produce documents held by the American corporation's foreign affiliate,25 than it would be willing to force the American affiliate of a foreign corporation to arrange for the production of evidence held by the foreign company's home office for use in foreign litigation. Where the target of a section 1782 proceeding is essentially foreign, the American court may well simply deem it most appropriate for the party seeking to obtain the evidence to proceed through the courts where the witness resides. In this connection, it seems unlikely that an American court would be willing to order either a person or a corporation subject to the jurisdiction of the country where the litigation is pending to produce evidence, since to do so would seem a fairly clear affront to the court before which the case is proceeding.
Even an American witness might argue that it is prohibited by foreign law from either testifying or providing the physical evidence at issue. If the witness were to do so in an attempt to avoid providing evidence pursuant to section 1782, the American court would probably apply a balancing test, derived from Section 40 of the Restatement (Second) of the Foreign Relations Law of the United States, to determine whether the testimony or production of evidence should nevertheless be ordered.26 As one trial court recently formulated that balancing test in a different context:
In deciding the propriety of ordering disclosures prohibited by the law of a foreign nation the court should consider: (1) the competing interests of the nations whose laws are in conflict; (2) the hardship of compliance on the party or witness from whom discovery is sought; (3) the importance to the litigation of the information sought; and (4) the good faith of the party resisting discovery. ... Although less significant, the nationality of the person invoking foreign law and the extent to which the required disclosure would take place in the foreign state are also relevant to the propriety of ordering disclosure."27
The following brief comments regarding the listed factors of the foregoing test can be made. First, the party resisting discovery will bear the burden of proving that foreign law prohibits the disclosure at issue. This burden can best be carried if the foreign government itself submits a formal objection to the requested discovery. Second, as to the court's consideration of the "hardship" factor, it would appear that the more draconian the foreign law, the less likely it will be that the American court will order discovery.28
As to the third of the above-listed factors, the importance of the information sought, it seems logical to believe that a foreign applicant under section 1782 would have to make a very strong showing of need, probably in excess of the showing required from a party to an American litigation, before the American court would order discovery that would violate the laws of a third country.29 The fourth of the listed factors, the good faith of the resisting party, is to a large extent self-explanatory; consideration of this matter will necessarily be case specific.
Though the nationality of the party from whom evidence is being sought has been categorized as a "less significant" factor in the context of an American proceeding,30 it seems reasonable to believe that in the context of a section 1782 application seeking an order forcing a party to produce evidence in violation of foreign law, the nationality of the resisting party will be of central importance. Stated simply, a 1782 application under such circumstances would have the best chance of success in cases where the resisting party is an American citizen or resident. If the resisting party is not American, the United States court might well deem the matter one to be decided by the courts of the country of which the resisting party is a national or by the courts of the country whose laws would ostensibly be violated.
VII. CONCLUSION
Section 1782 of the United States Code will likely become an increasingly significant tool for parties to foreign litigation who seek to gather evidence in the United States. Because of the liberality with which the statute recently has been applied, however, especially within the Second Circuit, section 1782 also poses significant risks to the corporation or individual with affiliates -- or simply with business connections -- in the United States, since a broad range of testimony or documents might be obtained from such affiliates or connections pursuant to the statute. It must, however, be borne in mind that the rules regarding section 1782 vary substantially in the various federal circuits. This state of uncertainty will likely continue until such time as the United States Supreme Court takes a position with respect to the statute's proper application.
Endnotes to W. Cameron Beard article
1 Pursuant to the Hague Convention, requests for judicial assistance must be processed through "Central Authorities," both in the country from which a request originates and in the United States. Clearance through central authorities is not required under section 1782.
2 Trial courts in the United States federal court system are called District Courts. There are several hundred District Courts, these being distributed throughout the American states and territories. A final decision of a District Court may in most cases be appealed to one of the thirteen so-called federal Circuit Courts of Appeals. A Circuit Court of Appeals generally hears appeals only from District Courts within the geographical confines of its assigned jurisdiction or "circuit," i.e., only from District Courts within a limited number of American states and territories. A decision of one Circuit Court of Appeals is binding on all District Courts within the given circuit, but not on District Courts within other circuits. Because relatively few decisions of the Courts of Appeals are reviewed by the United States Supreme Court, it is possible for a split of authority to arise, i.e., for the same legal question to be answered differently by different federal courts, depending on the Circuit in which the District Court considering the question is located. 3 964 F.2d 97 (2d Cir.), cert. denied sub nom., United Technologies International, Inc. v. Malev Hungarian Airlines, ___ U.S. ___, 113 S.Ct. 179, 121 L.Ed.2d 125 (1992). However, it seems established that an applicant under section 1782 must give his adversary in the main litigation notice of the section 1782 application in the United States. See generally In re Letters Rogatory from the Tokyo Prosecutor's Office, 16 F.3d 1016 (9th Cir. 1994); In re Letter of Request from Supreme Court of Hong Kong, 138 F.R.D. 27 (S.D.N.Y. 1991). It should be noted also that the Malev court, while clearly eliminating the requirement that a party seek to obtain evidence first through the foreign court, also held that an American trial judge may, as a prerequisite to discovery from sources in the United States, require a litigant to demonstrate that evidence was not obtainable from another, "more convenient, less burdensome or less expensive source" -- for example, through the foreign court. Moreover, the decision holds that the American judge may require a party to seek a ruling from the foreign court concerning the relevance of the requested evidence, before that evidence may actually be obtained in the United States. Accordingly, while the major holding of the Malev case is advantageous to parties seeking evidence in the United States, the decision's fine print may be used to advantage by the party seeking to avoid production. Great discretion is left in the hands of the American trial judge before whom an application is made.
4 At least four other federal circuits appear to take the opposite position.
5 3 F.3d 54, 58 (2d Cir.), cert. denied sub nom., Foden v. Aldunate, ___ U.S. ___, 114 S.Ct. 443, 126 L.Ed.2d 376 (1993). According to the court, it was the intention of the American Congress in enacting section 1782 to provide assistance with respect to international litigation without insisting on reciprocity. The hope was ostensibly that foreign countries would be encouraged by such an approach to follow suit and to allow Americans the same access to evidence in the foreign country as that to which they would be entitled in the United States.
6 In addition, even in the Second Circuit it may prove difficult to obtain evidence -- oral or documentary -- from a party to the foreign proceeding, where that evidence would not be available under the laws of the home jurisdiction. See In re Application of Euromepa, S.A., 155 F.R.D. 80 (S.D.N.Y. 1994).
7 Absent a request for application of foreign procedure, the Federal Rules of Civil Procedure will govern the taking of testimony. Of course, as the wording of the statute suggests, a party, probably even including the opponent in the foreign litigation, might ask that the testimony be conducted under foreign, rather than American, rules. Whether such a request from the opposing party would be granted, or whether making such a request in the first place would work to the opposing party's advantage, will necessarily turn on the facts of each case.
8 In re Application of Asta Medica, S.A., 981 F.2d 1 (1st Cir. 1992); In re Letter of Request from the Crown Prosecution Service of the United Kingdom, 870 F.2d 686 (D.C. Cir. 1989); Lo Ka Chun v. Lo To, 858 F.2d 1564 (11th Cir. 1988); In re Request for Assistance from Ministry of Affairs of Trinidad and Tobago, 848 F.2d 1151 (11th Cir. 1986), cert. denied sub nom., Azar v. Minister of Foreign Affairs of Trinidad and Tobago, 488 U.S. 1005, 109 S.Ct. 784, 102 L.Ed.2d 776 (1989); John Deere Ltd. v. Sperry Corp., 754 F.2d 132 (3d Cir. 1985). See also In re Court of the Commissioner of Patents for the Republic of South Africa, 88 F.R.D. 75 (E.D.Pa. 1980).
9 The Ninth Circuit comprises the states of California, Hawaii, Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona.
10 147 F.R.D. 223 (C.D.Cal. 1993). 11 (1987) 1 AC 24, (1986) 3A11 ER 487 (1986) 3 WLR 398, (1986) 2 Lloyd's Rep. 317.
12 [2] Lloyd's Law Rep. at 325.
13 See generally In re Letters Rogatory Issued by the Director of Inspection of the Government of India, 385 F.2d 1017, 1020 (2d Cir. 1967).
14 Fonseca v. Blumenthal, 620 F.2d 322 (2d Cir. 1980); In re Letters Rogatory Issued by the Director of Inspection of the Government of India, 385 F.2d 1017 (2d Cir. 1967); In re Letters of Request to Examine Witnesses from the Court of Queen's Bench for Manitoba, Canada, 59 F.R.D. 625 (N.D.Cal.), aff'd 488 F.2d 511 (9th Cir. 1973).
15 See, e.g., In re Letters Rogatory from the Tokyo District, Tokyo, Japan, 539 F.2d 1216 (9th Cir. 1976), in which the court gave effect to letters rogatory requested by a Japanese prosecuting authority in connection with criminal investigations prior to any decision to prosecute.
16 In re Application of Technostroy Export, 853 F.Supp. 695 (S.D.N.Y. 1994).
17 S.Rep. No. 15809, 88th Cong., 2d Sess. 7, reprinted in 1964 U.S.Code Cong. & Adm. News 3782, 3788.
18 H. Smit, International Litigation under the United States Code, 65 Colum.L.Rev. 1015, 1026 n.71 (1965) (emphasis added).
19 In re International Judicial Assistance (Letter Rogatory) for the Federative Republic of Brazil, 936 F.2d 702, 706 (2d Cir. 1991); In re Letter of Request from the Government of Switzerland, 1994 U..Dist. LEXIS 350 (S.D.N.Y. January 13, 1994).
20 In re Letters Rogatory from the Tokyo District Prosecutors Office, 16 F.3d 1016 (9th Cir. 1994).
21 In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d at 1155 (11th Cir. 1988).
22 In re Letter of Request from Crown Prosecution Service, 870 F.2d 686 (D.C. Cir. 1989).
23 In re Request for Judicial Assistance from the Seoul District Criminal Court, Seoul, Korea, 555 F.2d 720 (9th Cir. 1977).
24 Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987).
25 See Cooper Industries Inc. v. British Aerospace, 102 F.R.D. 918 (S.D.N.Y. 1984)(corporation ordered to produce documents in possession of corporate affiliate); Addamax Corp. v. Open Software Foundation Inc., 148 F.R.D. 462 (D.Mass. 1993)(third party corporation ordered to produce records belonging to foreign corporate parent). See generally Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514 (S.D.N.Y. 1992)(party with practical ability to obtain documents from another may be forced to produce them); M.L.C. Inc. v. North American Phillips Corp., 109 F.R.D. 134, 136-37 (S.D.N.Y. 1986)(party having legal right to obtain documents from another may be forced to produce them).
26 It will be recalled, however, that the statute itself prohibits compelling a witness to testify in violation of any legally applicable privilege.
27 Alfadda v. Fenn, 149 F.R.D. 28, 34 and n.6 (S.D.N.Y. 1993). In the Alfadda case, the court ordered discovery despite the prohibitions of foreign law. For a case in which the court ruled that such discovery was not appropriate, see Minpeco v. Conticommodity Services, Inc, 116 F.R.D. 517 (S.D.N.Y. 1987).
28 Courts are generally more willing to find that undue hardship will be suffered by a non-party witness than by a party to the litigation. However, under most circumstances in a section 1782 proceeding an American court would probably be unwilling to order a party to the foreign litigation to produce evidence in the United States, absent a request from the foreign court. Thus, it would seem that the opportunities for forcing the production of evidence under section 1782 in violation of foreign law will be fairly limited.
29 As noted previously, it is unlikely that the American court would seriously entertain an application by a litigant in foreign proceedings seeking an American court order for production of evidence in the country where the litigation is pending. The same would almost certainly be true with respect to a section 1782 application where the production of the requested evidence would violate the law of the forum state.
30 Alfadda v. Fenn, supra.
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Healy & Baillie's Hong Kong office was opened in late February, 1994. The office is now well established in central Hong Kong with Healy & Baillie partner Genrong Yu as the originating and current resident partner.
During September New York partner Howard M. McCormack temporarily substituted for Mr. Yu in Hong Kong while Mr. Yu returned to New York.
In addition to Mr. Yu's Master of Laws from the Shanghai Maritime Institute (1985) and J.D. from the University of Maine (1989), his several years of experience in our New York office uniquely qualifies him to address issues that arise when East/West legal systems meet.
Since its opening, the Hong Kong office has handled matters involving Hong Kong arbitration and litigation, Korean arbitration, Chinese legal issues, worldwide maritime casualties and other commercial disputes.
Healy & Baillie's office address in Hong Kong is as follows:
Healy & Baillie, Luk Hoi Tong Building, Suite 1301, 31 Queen's Road Central, Hong Kong; Tel.: (852) 537-8628 Fax: (852) 521-9072; MCI E-Mail No.: 641-2689
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Andrew N. Krinsky Joins the Firm
The Firm is pleased to welcome Andrew N. Krinsky, effective October 1, 1994, as a member of the Firm. Andrew is a 1973 graduate of Brandeis University and holds a Law Degree from The University of Pennsylvania Law School. He is a member of both the New York bar and the Massachusetts bar, with an extensive practice in commercial litigation and arbitration, including real estate, securities law, RICO, bankruptcy, copyright, trademark and unfair competition law. Andrew's previous experience included partnerships with the firms of Olnick, Boxer and Stroock & Stroock & Lavan.
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Susan E. Olick joined the Firm as a full-time associate in October. Susan received her J.D. in 1989 from Georgetown University Law Center. Susan brings to the Firm a solid commercial law and litigation background, having previously practiced as an associate with the Firm of Mudge, Rose, Guthrie, Alexander & Ferdon, and with the Firm of Bowdian & Eames.
Shari M. Rubin joined the Firm as a full-time associate in September. Shari received her J.D. in 1993 from Touro Law School, graduating as Valedictorian, and has been employed during the past year as a clerk for the Hon. Salem Vincent Ahto, Judge of the Superior Court of New Jersey. Shari is admitted in the states of New York and New Jersey.
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Staale Gjengset of the law firm of de Besche & Co. in Oslo sat with us for the month of September. Staale is a 1991 graduate of the Law Faculty at Oslo University, and is currently an associate attorney in Oslo whose work includes maritime cases and transactions.
Kap-You Kim, an attorney from the Seoul firm of Lee & Ko, will be with us for the balance of 1994. Mr. Kim obtained his LLM from Harvard last June. After his time here, Mr. Kim will spend three months in London before returning to Lee & Ko in Korea.
Robert Turner will be with us through October, having also joined us in early September. He recently graduated from DeMontfort University in Leicester, UK. Robert expects to enter the maritime brokerage business upon his return to London later this year.
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National Academy of Sciences Committee Chaired by Healy & Baillie Partner
Gordon W. Paulsen Issues Report on Salvage
The Committee report entitled "A Reassessment of the Marine Salvage Posture of the United States," has just been released. Healy & Baillie partner Gordon W. Paulsen chaired the National Research Council Committee on Marine Salvage Issues, National Research Council, Marine Board, National Academy of Sciences.
The report updates the 1982 Marine Board Salvage Report and includes a detailed study of the effect of later enacted Federal legislation, such as OPA 90, on the salvage capability in the East Coast, Gulf Coast and Pacific Coast regions of the United States. The current work of the committee began with a Symposium on the Purposeful Jettison of Petroleum Cargo, held in Washington, D.C. on February 23, 1993.
The "Reassessment" (1) reviews the importance of salvage in preventing marine pollution and in maintaining ports and waterways; (2) outlines changes in the U.S. Salvage industry since the 1982 report; (3) examines major issues facing the industry and alternative approaches for addressing the various concerns; and (4) presents the committees' major conclusions and recommendations, a few of which are:
The criteria for determining salvage compensation should be updated to reflect changes in the business structure of the salvage industry;
Congress should update the national salvage policy to ensure that an adequate level of salvage capability is available in U.S. waters;
Owners of commercial vessels should be required to demonstrate that they are prepared to address key aspects of salvage capability as it relates to their vessels;
The U.S. Coast Guard should urge the IMO to proceed with revision of Resolution A.535(13) "Emergency Towing Requirements for Vessels" as expeditiously as possible.
Formal salvage training for personnel of commercial vessels should be instituted;
The legal ambiguities regarding intentional jettison of petroleum cargos should be clarified;
The Coast Guard should promulgate a process for predesignating "safe havens."
A copy of the report can be obtained from the National Academy Press, 1994, 2101 Constitution Avenue, Box 285, Washington, D.C. 20055. $33 per copy. The full report of Mr. Paulsen's Committee concerning the purposeful jettison of petroleum cargo is likewise available at $33 per copy.
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Healy & Baillie has now taken over the 28th floor of 29 Broadway with renovations to begin early in October. Twenty-nine Broadway has been the Firm's home since 1966 at which time the Firm occupied one-half of the 11th floor. The Firm moved to the 26th floor in the early '70s, and gradually expanded down to the 25th floor and up to the 27th floor, and now the 28th floor, over the following years.
The newly constructed floor will provide us with a larger, better equipped conference room, as well as additional office space. Parts of other floors will also be affected as two new staircases are installed to improve internal traffic and communication. While some of our personnel will be temporarily relocated throughout the premises during the four months of construction, service to our clients will continue without disruption.
For those visiting during the renovation
period our reception area (normally on the 26th floor, where it has been
located for over 20 years), will be temporarily located on the 25th floor
for the duration of the renovation period. When construction is completed
early in 1995, the new reception area will be located on the 27th floor.
If you visit us after the renovations are completed, come to our new reception
area on the 27th floor.
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The Second Nicholas J. Healy Lecture on Maritime Law, November 3, 1994
The Rt. Hon. Lord Staughton will deliver the second Nicholas J. Healy Lecture on Admiralty Law. The lecture will be held at New York University School of Law, Tishman Auditorium, 40 Washington Square South, New York, New York, on Thursday, November 3, 1994, at 5:00 p.m.
Lord Justice Staughton is a Judge of the English Court of Appeals. His lecture will address the interpretation of maritime contracts. In addition to his contributions to the development of Admiralty law as a barrister and judge, Lord Justice Staughton is an editor of the ninth and tenth editions of Lowndes & Rudolf: The Law of General Average and the York-Antwerp Rules.
The Nicholas J. Healy Lecture on Admiralty Law was established by New York University two years ago to honor Nick Healy for his many contributions to New York University and to the field of admiralty law.
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LeRoy Lambert attended the 1994 annual meeting of the American Bar Association at New Orleans in August. LeRoy delivered a speech and was a panelist in a program presented by the Admiralty and Maritime Law Committee of the Section of International Law and Practice. The title of the speech was "Attachments under Rule B: A Simple, Effective, and Well-Established Remedy of Maritime Creditors in the United States."
LeRoy will present a paper at a conference in Shanghai sponsored by the Shanghai Maritime Law Institute, October 11-14, 1994. The title of the paper is "Comparison of Chinese and U.S. Limitation of Liability Laws."
Senior partner Nicholas J. Healy and wife Margaret will also attend, together with Healy & Baillie's resident Hong Kong partner Genrong Yu. Mr. Healy is one of two "honored guests" at the conference and will be a panelist.
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Major ComputerUpgrade Planned
by Glen T. Oxton
Healy & Baillie has adopted a plan for updating its computer systems. The PCs in the office will be replaced by Pentium machines; attorneys will be issued laptop computers; we will be shifting to Windows and Windows- based programs, and our accounting system will be integrated with our PC network. The most direct benefit to our practice and our clients resulting from the system's upgrade will be the further development of our use of Summation. Summation is a litigation support system that enables us to review, annotate and digest the full text of (1) trial and deposition transcripts, and (2) any database of documents in a case. In its enhanced version, Summation will enable us to link an image of a document to its database entry. A user can then conduct a search in the database for all documents authored by Mr. Smith, for example. A list of those documents will appear on the screen. Highlighting a document name and pressing a key will bring an image of the document to the screen. The image is essentially an electronic photocopy of the document showing all handwritten notes and other marks.
Service companies will convert ordinary business documents to images (at roughly 25¢/document), scanning them and placing them on CD-ROM discs. A single CD-ROM will hold several boxes of documents in image form. Thus, even the most document intensive case can be condensed to a handful of CD's. Storage, retrieval and management of documents is far more efficient and reliable when using images. The "original," for example, will never be lost, checked out or misfiled. Nevertheless, several people working on a network can have simultaneous access to the same image. Indeed, if clients scan files locally, it will be possible to avoid sending boxes and trunk-loads of documents in international shipments.
We will also be increasing our use of CD-ROM in our law library. The new computers will enable us to make better use of document assembly systems for both litigation and transaction forms. We look forward to employing these new systems. We are confident they will help us to enhance the quality, efficiency and economy of our service to clients.
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MAINBRACE is intended to provide general information. The articles contained in MAINBRACE do not constitute legal advice. An analysis of the facts relating to a particular issue must be accomplished before legal advice can be given.
NOTE: "Mainbrace," our Firm's cable address, in nautical terminology means the brace or rope sustaining the main yard on a ship. The Staff of "Mainbrace" consists of Nicholas J. Healy, Gordon W. Paulsen, John C. Koster, Matthew A. Marion, Betty M. Waterman and Renee Kintzer.
New York Office: 29 Broadway New York, NY 10006-3293 Telephone: (212) 943-3980 Telecopier: (212) 425-0131 |
Hong Kong Office: Luk Hoi Tong Bldg., Suite 1301 31 Queen's Road Central Hong Kong Telephone: (852) 2 537-8628 Telecopier: (852) 2 521-9072 |
Connecticut Office: Stamford HarborPark 333 Ludlow Street Stamford, CT Telephone: (203) 961-7250 Telecopier: (203) 357-7909 |
New Jersey Office: 374 Millburn Avenue P.O. Box 599 06902-6987 Millburn, NJ 07041-0599 Telephone:(201) 384-2556 Telecopier:(201) 384-1081 |
Internet:Reception@Healy.com
MAINBRACE
HEALY & BAILLIE
29 BROADWAY
NEW YORK, NEW YORK 10006-3293
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