There is a short version and a longer story to be told about the Grenfell Tower litigation in the US District Court for the Eastern District of Pennsylvania in a case called Behrens v Arconic.

The short version is that Judge Baylson, a judge who knows his stuff when it comes to discovery across jurisdictional borders, has ordered that “Plaintiffs must first utilize the Hague Convention processes to obtain the …. documents they seek”. The Order itself
puts it like this:

it is hereby ORDERED that the Recommendation of the Expert and Master is approved and Plaintiffs shall utilize the procedures of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters to obtain the documents that Arconic asserts are protected by the French Blocking Statute.

That’s it, really. All you need to do is remember where to find it when some US lawyer starts arguing that the Federal Rules of Civil Procedure are the sole source of authority on US discovery matters, that some kind of US discovery exceptionalism entitles US parties and courts to ignore the laws of other countries, and that the Hague Convention machinery is too slow for the purpose of getting discovery. Judge Baylson sets out with comprehensive care the factors which must be considered and which, in this case, supported the use of the Hague Convention.

To understand the significance of this, we need to go back a bit. Perhaps we no longer have to fight old battles but, having seen this aspect at least of US discovery exceptionalism laid in its coffin, I would like to go round with a hammer and some nails and make sure it stays there.

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I don’t really need to get into the details of the parties and how a fire in a London block of flats generates litigation in Pennsylvania. That is summarised at the beginning of Judge Baylson’s Memorandum on Defendants’ Motion to Dismiss pursuant to Federal Rules if Cicil Procedure 12 of December 2019. All we need to know for our purposes is that the litigation is about “the roles these companies allegedly played in supplying defective products that exacerbated the conflagration”.

I should add two other things. First, Judge Baylson is a long-standing faculty member at the annual Sedona Conference International Programme on Cross‐Border Data Transfers and Data Protection Laws, and he knows of what he speaks. Second, I have been talking and writing about this subject for many years, not always with the politeness which foreign judges might expect.

The key elements in Judge Baylson’s Memorandum are set out below. I refrain from giving more than pointers to sections because the Memorandum is so tightly and clearly written that you are better off reading it than reading any summary of mine. They include:

A recital of the French Blocking Statute and the penalties which it prescribes for use of documents in foreign proceedings.

The routes provided by the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters for getting (or at least seeking) access to documents which would otherwise be inaccessible by reason of a foreign law.

A history of the procedure adopted in the present case, including the appointment of an expert on the applicable French law, her report, and the arguments about her conclusions.

A summary of the principles derived from the 1987 Aérospatiale case which considered the collision between the French Blocking Statute and the discovery requirements of the Federal Rules of Civil Procedure.

An analysis of the effect of applying the Aérospatiale balancing factors (and in particular the one about comity) and the conclusion that they either strongly supported the Hague Convention route or did not weigh heavily in either direction.

A reference to the main principles set out in the Sedona Conference International Litigation Principles on Discovery, Disclosure and Data Protection in Civil Litigation.

Weighing all these things together, Judge Baylson concludes that:

On balance, the five Aérospatiale factors favor use of the Hague Convention. The Court takes seriously the concept of comity as it applies in this case and finds that it requires deference to the procedures of the Hague Convention. Therefore, Plaintiffs must first utilize the Hague Convention processes to obtain the AAP SAS documents they seek.

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To see how far we have come with this, you might like to look at an article which I wrote in 2012 with the title Cross-Border Discovery – Federal Judge makes a monkey of the cheese-eaters.

The US case considered there was Trueposition, Inc. v. LM Ericsson Tel. Co which is referred to in Judge Baylson’s memorandum. Three main topics arose – US antipathy to the French blocking statutes, the appearance that “important interests of the United States” and “the interests of the US party in the litigation” seemed to have become synonymous, and the lazy way in which successive opinions had copy/pasted (more or less) the Aérospatiale assertion that Hague Convention applications always took too long (this is the US exceptionalism point which is premised on the assumption that US litigation timetables are more important than any other consideration).

As you may guess, I enjoyed writing my “cheese-eaters” article, as with others of that period in which I took pot-shots at some aspects of US discovery which did not travel well outside US borders. Some things have changed, however, and for the better:

The GDPR and developments in US privacy have brought a greater US acceptance of privacy restraints on discovery; as the state and large corporate data-shysters have abused their data, US lawyers have begun to appreciate why protection is necessary.

The idea that the laws of other countries deserve respect has gradually come to be accepted. It seemed a fairly revolutionary idea when it was emphasised in The Sedona Conference International Principles on Discovery, Disclosure and Data Protection. The French Blocking Statute was considered particularly offensive because its entire purpose was the frustration of US discovery rules. There are better ways of dealing with that than punishing parties for compliance with foreign laws.

We are hearing less of the thoughtless reiteration of the Aérospatiale assertion that the Hague Convention is too slow. The days are gone, I hope, when US lawyers would simply staple their discovery request to a form and post it to the relevant foreign authority and then get cross when it is ignored. Process and procedure matter as much in foreign courts as they do in Iowa.

Proportionality considerations offer additional reasons for limiting the scope of discovery. The Sedona Conference International Principles invited parties to consider whether their request for Protected Data should be limited in scope to that which is relevant and necessary. Why just Protected Data? And why just for foreign requests? Why demand data which is not “relevant and necessary” in any litigation?

It helps to be aware that other jurisdictions have their own rules – I speak as one who once sat through a lecture given by a US discovery expert to a Hong Kong audience on how they should collect data, apparently oblivious to the fact that the US Federal Rules of Civil Procedure don’t apply everywhere. We have moved on from the days when US vendors of software and services would think they had successfully regionalised their marketing materials by removing the word “attorney”.

Perhaps a new generation of US judges will approach this whole subject – the conflict between US discovery and the restraints imposed elsewhere – with a new understanding of the purpose and effect of the rules of other countries and their practical effect on the scope, time and costs of US discovery. The first to do so, to my knowledge, was (now retired) US Magistrate Judge Andrew Peck in Da Silva Moore when, unprompted by either party, he ordered that French discovery be left on one side while the parties established what existed already in the US. He was ahead of his time, in this as in other things.

Judge Baylson’s memorandum is significant. He has restored the balance which a true reading of the Aérospatiale factors requires, and undone the thoughtless assertion, repeated ever since Aérospatiale, that the Hague Convention is “too slow” for US proceedings.

If this subject interests you, can I recommend The Sedona Conference International Litigation Principles on Discovery, Disclosure and Data Protection in Civil Litigation. Further, membership of Sedona Working Group 6 will keep you constantly abreast of developments in discovery across borders.

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