The Hague Evidence Convention: The Need for Guidance on Procedures and Resolution of Conflicts in Transnational Discovery
As international commercial disputes become more common, United States courts increasingly face difficult issues involved in transnational discovery. Two frequently encountered issues are choosing whether to use the discovery procedures of the Federal Rules of Civil Procedure or the Hague Evidence Convention and whether to enforce a discovery order when the order conflicts with a law of the state in which discovery is to occur. Although the Supreme Court has addressed both of these issues, it has left lower courts considerable discretion to deal with these issues case by case. Lower courts, therefore, have not been uniform in their approaches to these questions, generally evidencing a bias toward the familiar Federal Rules over the Hague Convention and employing a wide array of approaches to conflicts. This Note examines the case law on these two questions and concludes that the Supreme Court ought to provide more guidance to the lower courts, in the interest of providing more certainty and fairness to United States international trading partners. The Note advocates a rule that favors Hague Convention procedures more often and suggests adoption of the comity analysis of the Restatement (Third) of the Foreign Relations Law of the United States for cases in which foreign law conflicts with discovery orders issued by United States courts.