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District of Arizona Orders Use of Hague Convention

On March 19, 2018 Judge David Campbell of the United States District Court for the District of Arizona issued an order in River v. Trench Fr., Sas, 2018 U.S. Dist. LEXIS 44120, granting the defendant's motion to produce all documents and ESI according to the Chapter II of the Hague Convention. Chapter II provides for the appointment of a special commissioner to oversee production. Documents can be produced from France despite the restrictions of French blocking statutes when the procedures of the Hague Convention are followed.

Judge Campbell noted that the Supreme Court has ruled that a court can still order parties from countries that are signatories to the Hague Convention to produce documents in violation of a foreign blocking statute and that there is an obligation to comply with the convention. He stated the legal standard as that given in Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522 (1987) and included in part in the Restatement (Third) of Foreign Relations Law § 442. The court must analyze

1. the importance of the request documents.

2. the specificity of the request

3. availability of alternative sources of information

4. the extent to which the request interferes with the interests of the United States

5. burden on a foreign national

6. Likelihood of compliance with a discovery order.

In this case, he noted that the Mandatory Initial Discovery Pilot has a broad scope and may encompass documents that are not 'pivotal' to the outcome of the case. The MIDP request was for all documents that "may be relevant" and was thus not narrowly tailored. All of the requested information was located in France. Using the Hague Convention would only delay production by 60 days, and not necessarily demand the use of alternative means of getting the evidence. A violation of the blocking statute would impose hardship on the producing party as it might face criminal prosecution The defendant has agreed comply with the Hague Convention procedures for compliance. All of these factors supported the use of the Hague Convention.

The court also considered the interest of France in not having a U.S. discovery order violate its blocking statute and did not find countervailing U.S. interests.

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