Depositions/discovery in France and the Hague Convention

RE: U.S. subpoenas and discover in France.

Dear Attorney Smith,

From our telephone conversation and my review of the subpoena which you sent, I understand that you represent a plaintiff in a patent infringement matter before a United States District Court. In connection with that litigation, you wish to obtain certain documents from a French company which is not a party to the litigation, You have also advised me that the French company does not conduct business in the United States.

I would like to share with you the following initial thoughts.

If I were advising the Managing Director of the French Company, who I understand has never been to the United States and never plans to do so, I would be inclined to advise him to ignore a subpoena, since his company and he presumably would not be subject to meaningful sanctions.

Again, if I were advising that Managing Director and he determined that his company has some of the demanded documents, I would recommend that he determine if such documents are confidential. If he so determined, I would possibly recommend that the document not be produced until and unless a French court ordered their production.

However, if your client still wishes to serve the subpoena, I suggest that I first review with you the details of the subpoena so that there is a possibility of limiting the scope to the essential documents thereby possibly increasing the chances of some compliance.

If your client is prepared to go to the expense of seeking discovery in  France, pursuant to the terms of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad, perhaps some of the requested documents could be obtained pursuant to a French court order.

Last year we obtained satisfactory production in France of documents and testimony before a French Judge in Paris of a French citizen by using that Hague Convention.

In that matter, once the US Federal Judge had issued the Letter of Request, the process took an additional 6 months. But the process can take longer if one is faced with significant legal opposition. In addition, the French Judge was cooperative which is not always the case. Since presumably the French company in question does not have a “dog in the fight”, perhaps there would be no or limited opposition.

If you wish, please give me a call to discuss.

Best regards,

Author: Jonathon Wise Polier
Avocat aux Barreaux de Paris et de New York
Attorney-at-Law (Paris & New)