Rethinking Jurisdictional Discovery Under the Hague Evidence Convention
PDF · Kathleen Braun Gilchrist · Jul-2-2012 · 44 VAND. J. TRANSNAT'L L. 155 (2011)
When a federal court in the United States compels the discovery of information located abroad to determine whether it has jurisdiction over the defendant, the court can apply the Federal Rules of Civil Procedure or the Hague Evidence Convention. This Note argues that the approach taken by most courts—applying the balancing test formulated by the Supreme Court in Société Nationale Industrielle Aérospatiale v. U.S. District Court and favoring application of the Federal Rules—is misguided. Courts should apply the Evidence Convention more often in jurisdictional discovery disputes. They can do so under the existing legal framework with one of three holdings: (1) the Aérospatiale test does not apply to jurisdictional discovery disputes and parties must use the Evidence Convention; (2) the Aérospatiale test does not apply and the Evidence Convention should be used as a first resort, turning to the Federal Rules only when the Convention’s procedures prove infeasible; or (3) the Aérospatiale test applies, but recognition that the court has not established personal jurisdiction weighs so heavily in favor of applying the Evidence Convention that it has a similar effect as the first-resort approach. Each of these alternatives is preferable to the current approach.