United States District Court, D. Arizona
Salt River Project Agricultural Improvement and Power District, Plaintiff,
Trench France SAS, et al., Defendants.
G. Campbell United States District Judge
Salt River Project (“SRP”) sued Defendants Trench
France, S.A.S (“Trench-France”) and Trench
Limited (“Trench-Canada”) alleging negligence and
strict products liability for failure to warn of risks
associated with electrical bushings, resulting in a May 2015
explosion at SRP's Santan Generating Station. Doc. 1. The
parties are currently engaged in discovery. Trench-France, a
French corporation with its principal place of business in
France, has filed a motion to appoint a commissioner pursuant
to Article 17 of Chapter II of the Hague Convention on the
Taking of Evidence Abroad in Civil or Commercial Matters (the
“Hague Convention”), opened for
signature March 18, 1970, 28 U.S.T. 2555, T.I.A.S. No.
7444. Doc. 78. Trench-France asks the Court to order that all
documents and electronically stored information
(“ESI”) it produces in this suit be produced
pursuant to the procedures in Chapter II of the Hague
Convention. Id. SRP opposes the motion. Doc. 84. The
Court will grant the motion.
The French Blocking Statute and the Hague
law states that, “[s]ubject to treaties or
international agreements and applicable laws and regulations,
it is forbidden for any person, to request, search or
communicate under written, oral, or any other form, documents
or information of an economic, commercial, industrial,
financial, or technical nature for the purpose of
constituting evidence for or in the context of foreign
judicial or administrative proceedings.” Doc. 78 at 5
(quoting Article 1 bis of Law No. 80-538). This law
is commonly referred to as the “French Blocking
Statute.” See Societe Nationale Industrielle
Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa
(“Aerospatiale”), 482 U.S. 522, 526 n.6
& 544 n.29 (1987); Connex R.R. LLC v. AXA Corp. Sols.
Assurance, No. CV1602368ODWRAOX, 2017 WL 3433542, at *5
(C.D. Cal. Feb. 22, 2017). Violators of the statute may face
up to six months imprisonment and a fine of up to €90,
000. Doc. 78 at 5-6 (citing Article 3 of Law No. 80-538).
both France and the United States are signatories of the
Hague Convention, producing evidence pursuant to the Hague
Convention's procedures does not violate the French
Blocking Statute. The Convention outlines two distinct
I involves “Letters of Request, ” whereby the
Court would send a letter of request to French authorities
and a French judge would oversee discovery in France.
See Hague Convention arts. 1-14; Doc. 78 at 41
¶ 12. Courts have noted that this procedure can be
“unduly time consuming and expensive.”
Aerospatiale, 482 U.S. at 542.
II allows for the appointment of a private attorney in France
to serve as “commissioner” and oversee production
in France. See Hague Convention art. 17; Doc. 78 at
41 ¶ 13. Under this procedure, the Court appoints a
commissioner and seeks formal authorization from the French
Ministry of Justice for the appointment. Id.
Trench-France asserts that authorization generally takes
about 60 days, after which the process moves swiftly. Doc. 78
at 42-44 ¶¶ 15-20. Trench-France also asserts that
the procedure is unlikely to impose any substantive limit on
the scope of discoverable information. Doc. 78 at 43
¶¶ 18-19. Trench-France seeks to use the Chapter II
procedure. It has identified Mr. Christian Curtil, an
independent French attorney, as its proposed commissioner,
and has submitted a formal request form, which it will
translate to French and submit to the appropriate office of
the French Ministry if the Court approves. See Doc.
78 at 44 ¶¶ 21-22; Doc. 78-1 at 5-9. Trench-France
will bear the costs associated with this process. Doc. 78 at
Discoverable Information in France.
suit is subject to the Mandatory Initial Discovery Pilot
(“MIDP”) project, which requires the parties to
produce documents and ESI that “may be relevant to any
party's claims or defenses.” See Doc. 5 at
7. Trench-France asserts that it maintains documents and ESI
in France that it is obligated to produce under the MIDP.
Doc. 78 at 4. Trench-Canada, a Canadian corporation
affiliated with Trench-France, maintains many of the same
documents and ESI in Canada. Id. Trench-Canada will
produce these documents without issue, as it is not subject
to the French Blocking Statute, but Trench-France states that
there are at least some documents and ESI which are held
solely by Trench-France in France. Doc. 78 at 5, 20.
Trench-France argues that it would violate the French
Blocking Statute if it produced these documents and ESI
outside of Hague Convention procedures. See Doc. 78
at 5, 39-41. Trench-France has consistently maintained this
position, raising the need for the appointment of a
commissioner at the parties' Rule 26(f) conference, the
Rule 16 scheduling conference, and in its initial MIDP
response. See Doc. 67 at 7; Doc. 79 at 22-26; Doc.
78 at 29-30. SRP has consistently objected.
Supreme Court has explained that use of Hague Procedures is
“optional, ” and that “the Hague Convention
did not deprive the District Court of the jurisdiction it
otherwise possesse[s] to order a foreign national party
before it to produce evidence physically located within a
signatory nation.” Aerospatiale, 482 U.S. at
539-40. Even where ordering the foreign party to produce
discovery will potentially cause the party to violate a
blocking statute in its home country, use of Hague procedures
is not mandatory. Id.; see also Richmark Corp.
v. Timber Falling Consultants, 959 F.2d 1468, 1471 (9th
determine whether to utilize Hague Procedures, federal courts
must conduct a “particularized analysis” of the
“particular facts, sovereign interests, and likelihood
that resort to those procedures will prove effective.”
Aerospatiale, 482 U.S. at 543-44. The Ninth Circuit
considers the factors contained in the Restatement (Third) of
Foreign Relations Law § 442(1)(c):
the importance to the investigation or litigation of the
documents or other information requested; the degree of
specificity of the request; whether the information
originated in the United States; the availability of
alternative means of securing the information; and the extent
to which noncompliance with the request would undermine
important interests of the United States, or compliance with
the request would undermine important interests of the state
where the information is located.
Richmark, 959 F.2d at 1475 (citing
Aerospatiale, 482 U.S. at 2556 n.28). The Ninth
Circuit also considers “the extent and the nature of
the hardship that inconsistent enforcement would impose upon
the” foreign national, and “the extent to which
enforcement by action of either state can reasonably be
expected to achieve compliance with the rule prescribed by
that state.” Richmark, 959 ...