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Blocking Statutes and the Hague Evidence Convention: Frustration for American Litigants in Transnational Litigation

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written by NITA guest bloggers Samantha E. Scheff and Michael J. Costello, II

Blocking statutes are laws enacted in countries with the purpose of frustrating litigation in the United States by prohibiting the production of evidence in courts in the United States that otherwise have jurisdiction[1]. International litigation in courts in the United States between American citizens and citizens of other countries has become more prevalent through globally conducted businesses and transnational commerce[2]. The purpose of enacting blocking statutes, as they are known, is to force the United States into strict compliance with the procedures promulgated by the Hague Evidence Convention on the Taking of Evidence Abroad in Civil or Commercial Matter (HEC)[3]. The reason foreign countries assert to enact these laws is to avoid compliance with United States discovery processes that are at odds with foreign discovery procedures and policies[4]. The United States regards these blocking statutes as a means of delaying litigation, barring access to evidence, and frustrating their legal system[5]. This article discusses the HEC and how American courts and lawyers deal with it.

The HEC was negotiated in 1970 to avoid countries from frustrating one another’s national sovereignty[6]. The HEC is a treaty allowing letters rogatory, or letters of request, to be sent from one court to another with the intention of having the foreign court order production of evidence[7]. For the most part, the treaty is concerned with allowing the jurisdiction requesting the evidence to continue to follow its rules of procedure as closely as possible[8].

The United States Supreme Court has firmly established in Société Nationale Industrielle Aérospatiale v. U.S. District Court for the Southern District of Iowa that, so long as personal jurisdiction exists under the Federal Rules of Civil Procedure, the HEC need not be the exclusive or even the first resort used to compel the production of documents or information from a foreign party[9]. The Court also held that a United States court may order the production of evidence even if doing so will violate a foreign blocking statute[10]. The ruling became United States policy—that American national interests will tend to be favored over international ones[11]. However, the rule is not absolute, and courts may employ a balancing test to determine whether they will grant comity to the foreign blocking statute. The balancing test used is taken from the Restatement (Third) of Foreign Relations Law[12]. The factors considered by the court are:

  • the importance of the documents to the litigation;
  • the specificity of the request;
  • whether the information originated in the United States;
  • the availability of alternate means to secure the information;
  • whether compliance with the request would undermine important interests in the foreign state; and
  • the extent to which noncompliance would undermine important interests of the United States.

A minority of jurisdictions, including the Third Circuit, simplified the test to three elements:

  1. prior scrutiny in each case of the particular facts;
  2. sovereign interests; and
  3. the likelihood that such resort will prove to be effective.[13]

Ultimately, the tests are very similar, and it is unlikely that using one or the other will be outcome determinative.

In re Activision Blizzard Stockholder Litigation[14], a state court case in Delaware, is an excellent example of how courts apply the majority balancing test from the Restatement. In this case, shareholders sued a Delaware corporation and its controlling stockholder, a French company, for allegedly breaching its fiduciary duties by transferring over 50 percent of its outstanding shares from the controlling stockholder to the corporation[15]. The shareholders filed a motion to compel discovery, and the French company objected on the ground that French law barred the production of discovery unless it was pursuant to the HEC[16]. The French blocking statute broadly prohibits any form of discovery in France for the use of foreign judicial proceedings, with penalties for disobeying this statute being the possibility of heavy fines or imprisonment[17]. The Delaware Chancery Court applied the balancing test and held that the action would proceed under both the Court of Chancery rules and the HEC[18]. The court found that the documents being requested were material to the case, specific in nature and not overly broad to comply with the HEC, and could not be obtained through alternative means[19]. With multiple business connections throughout the United States, it would make sense for this type of evidence to have originated in the United States, yet there was no definitive evidence establishing whether the documents originated in France or the United States[20].

When establishing whether compliance with the discovery request would undermine interests in France, the court looked directly to the French blocking statute[21]. The French blocking statute was broad and prohibited any person from conducting discovery for the purposes of any foreign litigation without focusing on any specific material or mentioning a French sovereign interest[22]. However, noncompliance would directly undermine Delaware’s interest in effectively litigating internal affairs within its corporations[23]. Furthermore, the French company was involved in many business ventures and had previously submitted to the jurisdiction of Delaware courts, by accepting a director position in a Delaware corporation, and in another suit disregarding blocking statutes where it was beneficial to the company[24]. Balancing these factors, the court gave the French company the opportunity to use the HEC to make a good faith effort to receive the requisite authorization from the French authorities for the discovery by the time the document production would be due in the Court of Chancery case[25]. However, if the process could not be completed by then, the French company was expected to produce the documents or face sanctions from the Delaware court[26]. It is important to point out that when the court was deciding whether to apply the HEC at all, it cited many reported American cases that perceive the HEC as lengthy, burdensome, and inefficient[27]. Further, even if the French company heard back from French authorities in the given time period, if those authorities chose not to comply with the letter of request, the court would then mandate the use the procedures available in the United States’ legal system[28]. This decision is a prime example of how American courts attempt to honor the HEC, but when there is as conflict with the United States legal system, the courts have found ways to support the United States national interest and sovereignty.

The Activision holding and other opinions do not create a bright-line rule governing whether a United States court will uphold a foreign blocking statute[29]. Courts will, therefore, make the determination based on the unique facts of each case using the balancing factors described above. However, it appears that foreign parties may be at a disadvantage, given the Supreme Court’s statement that it will weigh the United States’ interests more favorably than foreign interests[30]. The reality is that the enactment of foreign blocking statutes rarely prevent foreign litigants from having to comply with discovery orders from the Unites States’ jurisdiction. Overall, the courts have discretion when deciding whether to order the production of evidence or issue protective orders in response to these blocking statutes. This discretion began with the decision in Société Nationale Industrielle Aérospatiale v. U.S. District Court for the Southern District of Iowa and continues by the decades of developing case law demonstrating the trend of American courts choosing to use their own discovery procedures[31].

Yet, despite the widespread refusal of American courts to comply with foreign blocking statutes, the Second Circuit has apparently created a way for foreign companies to possibly avoid this result[32]. In re Sarrio[33], S.A. includes dictum stating that American law firms representing foreign companies need not provide documents falling under the scope of blocking statutes[34]. The case involved internal investigations by the SEC under 28 U.S.C. § 1782, which allows district courts to compel persons residing within their district to testify or produce documents for use in proceedings occurring in foreign jurisdictions, which is known as a subpoena duces tecum[35].

The Sarrio court cited Fisher v. United States[36], which recognized that documents that are undiscoverable in the hands of a law firm’s foreign client are subject to attorney–client privilege[37]. It went on to say that this reasoning is applicable to subpoenas duces tecum, because they lie outside the statutorily provided limits granting courts power to compel production[38]. Therefore, assuming the documents are held by the United States law firm for the purpose of legal review, it is likely that the Second Circuit would not compel discovery on the basis of attorney–client privilege. The Second Circuit ultimately does not want a result where documents that would not otherwise be within the scope of a subpoena suddenly fall within that scope simply because they are being used by a United States law firm[39]. Significantly, the bank involved in this case withdrew its objection to production, so the legal significance of this reasoning is dictum[40]. If courts in the Second Circuit choose to follow this approach, foreign companies can avoid violating their home country’s blocking statute by evoking attorney–client privilege.

In addition, banking secrecy laws may be considered a type of blocking statute because they functionally work the same way by including provisions that block foreign discovery. In general, these laws obligate banks to keep customer information private[41]. Banks in foreign jurisdictions are usually structured to ensure that the customer’s information is kept private, such as using pseudonyms for the accounts and insulating bank employees from the information[42]. While banking in jurisdictions such as Switzerland has enjoyed a substantial amount of privacy in the past, the current global trend has been moving toward open exchange of customer information. For example, in a proposed piece of French legislation commonly called “Sapin II,” a newly created anti-corruption enforcement body will have the authority to monitor compliance with the French blocking statute[43]. This could result in a change in the French courts’ reluctance to enforce it[44].

In 2010, the United States Congress passed the Foreign Account Tax Compliance Act (FATCA) in an attempt to curb tax evasion that was enabled by these banking secrecy laws[45]. The law requires reporting by U.S. taxpayers that meet certain criteria, specifically, taxpayers who have foreign financial accounts and offshore assets[46]. Foreign financial institutions are also required to report financial accounts held by U.S. taxpayers[47]. This would include foreign investment banks in jurisdictions where tax evaders have their assets[48].

Another important step in global tax transparency took place in 2014[49], when 101 nations committed to implementing a Common Reporting Standard was promulgated by the Organization for Economic Cooperation and Development (OECD)[50]. This helped ease the burden on financial institutions facing different compliance standards in various jurisdictions, which is credited with an increase of voluntary disclosures[51]. The recent Panama Papers leak may lead to additional pressure being placed on countries to join these types of initiatives. If this trend continues, banking secrecy laws may matter less over time.

To understand blocking statutes, it is important to recognize that the initiative of the HEC was to take into consideration the realities of international relations and ensure that litigation between foreign nations would afford respect for one another in regard to differing legal systems and policies. In large part, these blocking statutes were the direct response to the United States reluctance to adhere to the HEC when dealing with foreign litigants. Many countries with different legal systems view this reluctance to use the HEC, either exclusively or at least as a first resort, as a violation of their sovereignty[52]. Article 12 of the HEC establishes that blocking statutes should effectively prohibit disclosure by including an exception to the mandatory production of discovery requests where a request is offensive to the nation’s sovereignty[53]. Yet, when the United States courts are analyzing these blocking statutes, they are taking many factors into consideration, with the result that these statutes are often unenforced[54].

In an attempt to change the relaxed compliance with these blocking statutes by the United States and France, France is seriously considering more frequently enforcing its criminal sanctions for violations and raising the fines connected with these sanctions[55].

In conclusion, although the HEC is at issue in other countries, the HEC is more heavily litigated in the United States than in any other countries[56]. The United States is obviously a major player in international globalization, and many countries want to be involved with American companies. Yet these companies do not want to be subject to the United States legal system. The United States approach to resolution of disputes is based on zealous advocacy in court, and other countries are extremely against this type of judicial process[57]. The HEC was designed to acknowledgement different methods of discovery in international litigation, but has proven ineffective when it comes to foreign litigants in American courts. Blocking statutes have been put in place as a result of other nations’ frustration with the American courts, but have not had the impact on the American courts’ choice of law that these nations were seeking to attain by enacting of these laws. One way to accomplish more harmony in global business is to promote business contracts that include clauses setting forth both the governing law and the jurisdiction the parties will submit to in the event of legal disputes. Employing these clauses would make it easier to differentiate between actual sovereignty problems and business companies attempting to use blocking statutes as a means of avoiding compliance with the American litigation system. If protecting foreign sovereignty is the ultimate goal behind these blocking statutes, adding choice of law and forum selection clauses in international contracts could help solve the problem of compliance with blocking statutes.

Samantha E. Scheff and Michael J. Costello II are third-year students at Nova Southeastern University College of Law and research assistants to Professor Michael J. Dale.

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[1] Laurent Martinet & Ozan Akyurek, The Perils of Taking Discovery to France, 20 No. 5 PRAC. LITIGATOR 39 (2009).
[2] Foreign Blocking Statutes and Cross-Border Discovery, ARENT FOX (Mar. 10, 2014), https://www.arentfox.com/newsroom/alerts/foreign-blocking-statutes-and-cross-border-discovery#.WAPupjLMyYV.
[3] Id.
[4] Vivian G. Curran, United States Discovery and Foreign Blocking Statutes, 76 LA. L. REV. 1141, 1141 (2016).
[5] See, e.g., Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522, 542 (1987); In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 546 (Del. Ch. 2014); Trueposition, Inc. v. LM Ericsson Tel. Co., 2012 WL 707012, at *5 (E.D.Pa. Mar. 6, 2012); In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51, 53 (E.D.N.Y. 2010); Benton Graphics v. Uddeholm Corp., 118 F.R.D. 386,391 (D.N.J. 1987).
[6] 28 U.S.C. § 1781; Curran, supra note 4, at 1143.
[7] Bureau of Consular Affairs, U.S. Dep’t of State, Preperation of Letters Rogatory, https://travel.state.gov/content/travel/en/legal-considerations/judicial/obtaining-evidence/preparation-letters-rogatory.html.
[8] James P. Springer, An Overview of International Evidence and Asset Gathering in Civil and Criminal Tax Cases, GEORGE WASHINGTON JOURNAL OF INTERNATIONAL LAW AND ECONOMICS 313 (1988).
[9] See Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa 482 U.S. 522 (1987).
[10] “The United States Supreme Court has firmly established that, so long as personal jurisdiction exists, a U.S. court may order the production of evidence even if doing so will violate a foreign blocking statute.” Société, 482 U.S. at n. 29 (1987).
[11] “When there is any doubt, national interests will tend to be favored over foreign interests.” Id. (quoting Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 951 (1984).
[12] RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 442(1)(c).
[13] In re Automotive Refinishing Paint Antitrust Litigation, 358 F.3d 288, 300 (3d Cir. 2004).
[14] 86 A.3d 531 (Del. Ch. 2014).
[15] Id. at 532–33.
[16] Id. at 533.
[17] Id. at 536, 549.
[18] Id. at 541.
[19] In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 543–45 (Del. Ch. 2014).
[20] Id. at 545.
[21] Id. at 543–45.
[22] Id.
[23] Id. at 547–48.
[24] In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 549–50 (Del. Ch. 2014).
[25] Id. at 550.
[26] Id. at 551.
[27] Id. at 546.
[28] Id. at 551.
[29] See, e.g., In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 546 (Del. Ch. 2014).
[30] Société, 482 U.S. at n. 4 (1987).
[31] See id.; In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 546 (Del. Ch. 2014); Trueposition, Inc. v. LM Ericsson Tel. Co., 2012 WL 707012, at *5 (E.D.Pa. Mar. 6, 2012); In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51, 53 (E.D.N.Y. 2010); Benton Graphics v. Uddeholm Corp., 118 F.R.D. 386,391 (D.N.J. 1987).
[32] Travis Robert-Ritter, Using Second Circuit Precedent to Fundamentally Change Multinational Corporations’ Global Foreign Corrupt Practices Act Internal Investigations, 8 B.Y.U. INT’L L. & MGMT. REV. 89 (2012).
[33] 119 F.3d 143 (2d Cir. 1997).
[34] Id. at 146.
[35] 28 U.S.C. § 1782.
[36] 425 U.S. 391 (1976).
[37] In re Sarrio, 119 F.3d at 146-48.
[38] Id.
[39] Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 169 (2d Cir. 2003).
[40] In re Sarrio, 119 F.3d at 144.
[41] G. Philip Rutledge, Bank Secrecy Laws: An American Perspective, 14 DICK. J. INT’L L. 601 (1996).
[42] Id.
[43] Latham & Watkins LLP, French Anti-Corruption Reform Expected in 2016 (April 11, 2016), http://www.lexology.com/library/detail.aspx?g=0477aaee-fcfd-4ab5-92a4-ab35418c75da.
[44] Ozan Akyurek, United States: French Blocking Statute: A Death Foretold?, MONDAQ (Feb. 12 2014), http://www.mondaq.com/unitedstates/x/292340/Trade+Regulation+Practices/French+Blocking+Statute+A+Death+Foretold.
[45] See irs.gov, Foreign Account Tax Compliance Act, https://www.irs.gov/businesses/corporations/foreign-account-tax-compliance-act-fatca (last updated Sept. 13, 2016).
[46] Id.
[47] Id.
[48] Id.
[49]OECD, Global Tax and Transparency: We Have the Tools, Now We Must Make them Work (2016), https://www.oecd.org/forum/oecdyearbook/global-tax-transparency-we-have-the-tools.htm.
[50] Id.
[51] Id.
[52] Mark A. Cotter, The Hague Evidence Convention: Selfish U.S. Interpretation Aggravates Foreign Signatories and Mandates Changes to Federal Discovery Rules, 6 FLA. J. INT’L L. 233, 247–48 (1991) (explaining that Germany, the United Kingdom, and France view the United States’ reluctance to adhere to the HEC as an infringement of their legal sovereignty).
[53] 28 U.S.C. § 1781; Cotter, supra note 52, at 244.
[54] See, e.g., In re Aircrash Near Roselawn, Indiana, 172 F.R.D. 295 (N.D. Ill. 1997) (court refused to issue a protective order in response to a French blocking statutes not only because it was meant to frustrate discovery, but also because it was rarely enforced).
[55] Curran, supra note 4, at 1147–48 (discussing how an “eminent French lawyer and former cabinet minister” advises that both American and French litigants need to take the French blocking statute seriously and that applying it more seriously is a way to establish that the statute is not the sham that American courts perceive it as).
[56] Cotter, supra note 52, at 245.
[57] See Curran, supra note 4, at 1141–42.

Demonstrative Evidence and Demonstrative Aids: Is There Really a Distinction?

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written by NITA guest bloggers Anastasia Pallagrosi and Michael J. Dale

Many lawyers and law students are familiar with Nita Liquor Commission v. Cut Rate Liquor and Jones, one of the most famous National Institute of Trial Advocacy fact patterns. In Nita Liquor Commission, the owner of a liquor store is charged with a civil violation of Nita Liquor Commission Regulations for knowingly selling alcoholic beverages to an intoxicated person, the famous disheveled Walter Watkins.

During discovery, the Commission provides the investigative report of Liquor Commission Investigator James Bier, who was present during the night of the alleged violation. In his report, Investigator Bier describes the event while seated in his car, which was set up for surveillance across the street south of the liquor store. Now, suppose Investigator Bier takes the stand, and the Commission lawyer asks him to give a full description of the scene, specifically the intersection. Also suppose that the lawyer, while questioning Investigator Bier, uses a diagram of the intersection to help jurors fully understand the investigator’s location and that of the liquor store. Is this diagram admissible demonstrative evidence, or is it a demonstrative aid?

To state the obvious, the party who bears the burden of proof must present relevant evidence of material facts. The means of proof can take various forms: live and recorded testimony and exhibits that can be real, documentary, illustrative, and demonstrative. But all have a common purpose: to prove or disprove, either independently or together with other evidence, any issue of material fact that is relevant to the case. Such means of establishing issues play an essential role at trial; they are commonly referred to as substantive evidence[1].

This blog post focuses on demonstrative evidence. Unfortunately, it is not easy to define the term demonstrative evidence. Indeed, no evidence code nor the Federal Rules of Evidence provide any specific definition, the sole reference being in the Advisory Committee’s Note to Federal Rule 611[2]. Additionally, the Advisory Committee’s Note to Rule 401 states that so-called background evidence—such as charts or photographs—must be universally admitted at trial as an aid that can provide a better understanding of facts[3]. One of the crucial questions, then, is this: What is the difference, if any, between demonstrative evidence and demonstrative aids?

Terms such demonstrative evidence and demonstrative aids are often confusing because of the absence of a clear definition of demonstrative evidence in the Federal Rules, where these terms are often loosely used. Courts refer to demonstrative evidence as any means used to display or explain other testimonial, documentary, real proof, or a judicially noticed fact[4]. Demonstrative evidence is, in short, any visual aid and object used to help the witnesses to demonstrate oral testimony[5]. It can assume various forms, such as models, charts, photographs, videos, or diagrams[6]. This kind of descriptive evidence can be depicted visually in an illustrative exhibit[7], which can be pre-made, prepared by counsel, or made by a witness during testimony[8].

Demonstrative aids, sometimes referred to as visual aids or illustrative aids, are tangible pieces of information that would seem to be exactly the same as demonstrative evidence. Notwithstanding the use of different terms, which contributes to confusion as to terminology, demonstrative aids serve the same purpose as demonstrative evidence[9]. They help the witness to better demonstrate oral testimony, and at the same time provide jurors with a better understanding of facts[10]. For example, a skeletal model referred to by an expert witness to describe the plaintiff’s bone damages in a tort action is demonstrative evidence—once, of course, the lawyer has requested that the model be marked as an exhibit[11]. On the other hand, not all the aids used to help the witness in her testimony are necessarily demonstrative evidence[12]. So, for example, the oral testimony of a witness is evidence, but a notepad containing bullet points from the same oral testimony is a demonstrative aid[13].

However, demonstrative evidence and demonstrative aids differ in one significant way: the former can be admitted into the jury room for the deliberation, whereas the latter cannot, the reason being that demonstrative aids simply implement or substitute for what the lawyer would be able to show with his own words[14]. That being said, the lawyer who wants an aid to be available to jurors must offer a demonstrative exhibit[15]. Of course, this does not mean that the exhibit will be automatically admitted into evidence. Indeed, in the event the exhibit is excluded by the judge, it may still assist the witness during testimony[16]. The issue then becomes how demonstrative evidence can be admitted at trial.

When speaking about admissibility of demonstrative evidence, one should keep in mind that the only limitation, other than relevance, is the judge’s discretion[17]. Federal Rule of Evidence 611(a) sets out the standards for the use of evidence, stating that the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment. The judge may admit or exclude demonstrative evidence, and her other ruling will be usually sustained unless it is shown that there was an abuse of discretion[18]. Moreover, to have the demonstrative aid admitted into evidence, the lawyer must be able to satisfy the test for admissibility, which includes a competent witness with personal knowledge except experts, relevant information, and a proper foundation for the exhibit’s admissibility. Despite the fact that an aid may be relevant, to have it admitted into evidence requires an additional showing that the evidence should not be excluded due to unfair prejudice, delay, because it misleads the jurors, or consumption of time which outweighs its probative value[19]. Thus, a judge must balance the potential prejudice that may derive by admission of demonstrative aids, whose value may be more substantially prejudicial than probative under Federal Rule 403[20].

So what if the aid is a diagram depicting the scene, as in the Nita Liquor Commission case? It might be helpful to briefly explain how this would work pragmatically at trial. First, Investigator Bier would have to make the scene relevant, the area depicted in the diagram. Then the diagram would have to be recognized by the witness, meaning that the witness—here, Investigator Bier—would have to testify that the diagram depicts a certain area which with he is familiar. He would also have to give an explanation as to why he is familiar with the area. He would then testify that the scene depicted in the diagram is a fair and accurate representation of the area on the date in question. After laying foundation for the diagram, the lawyer may offer the illustrative exhibit “for identification” into evidence. However, the diagram might not to be to scale. It need be fair, accurate, and of assistance to the witness. In this situation, opposing counsel may ask for a limiting instruction to the jurors. And the final word, of course, rests with the judge.

In conclusion, then, the key distinction between a demonstrative aid and demonstrative evidence appears to be that the latter comes into evidence and can be reviewed by the jurors during deliberations.

Anastasia Pallagrosi is a graduate of Roma Tre University, Rome, Italy, and a dual degree student at Nova Southeastern University College of Law, where she is a research assistant to Professor Michael J. Dale. She can be reached at anapallagrosi@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

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[1]Robert D. Brain & Daniel J. Broderick, “The Derivative Relevance of Demonstrative Evidence: Charting Its Proper Value,” 25 U.C. Davis L. Rev. 957, 972 (1992).
[2]Fed. R. Evid. 611.
[3]Fed. R. Evid. 401.
[4] Brain & Broderick, supra note 1, at 968–69.
[5] Edward J. Imwinkelried, Evidentiary Foundations 130 (Lexis Nexis, 7th ed. 2008).
[6] Brain & Broderick, supra note 1, at 968–69.
[7] Courts will usually allow the use of exhibits if they can help jurors better understand the facts of a case. However, terminology is loose as to whether such exhibits should be identified as “illustrative” or “demonstrative.” Indeed, exhibits are used both for demonstrative and illustrative purposes. See Scott D. Lane & Fred Lane, Lane Goldstein Trial Technique § 12:29 (3d 2016).
[8] Brain & Broderick, supra note 1, at 969.
[9] Mary Quinn Cooper, “The Use of Demonstrative Exhibits at Trial,” 34 Tulsa L. J. 567, 567 (1999).
[10] Id. at 568.
[11] Imwinkelried, supra note 5, at 132.
[12] Cooper, supra note 9, at 570.
[13] John F. Rooney, “The Importance of Demonstrative Evidence,” Melick & Porter Blog (Aug. 27, 2016), http://www.melicklaw.com/?t=40&an=9758.
[14] Id.
[15] Imwinkelried, supra note 5, at 132.
[16] Cooper, supra note 9, at 570.
[17] Imwinkelried, supra note 5, at 131.
[18] Michael Sudman, “The Jury Trial: History, Jury Selection, and the Use of Demonstrative Evidence,” 1 J. Legal Advoc. & Prac. 172, 183 (1999).
[19] Fed. R. Evid. 403.
[20] Id.

An Overview of the 2015 Amendments to the Federal Rules of Civil Procedure

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written by NITA guest bloggers Tereza Horáková and Michael J. Dale

I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.

This quote comes from the 2015 Year-End Report on the Federal Judiciary issued by the Chief Justice John G. Roberts. Chief Justice Roberts[1] was addressing the protracted, antagonistic, and wasteful discovery practices often present in today’s litigation. The eradication of such practices became the main focus of the Amendments to the Federal Rules of Civil Procedure that went into effect on December 1, 2015 (hereinafter the 2015 Amendments). The 2015 Amendments represent one of the most significant changes to the Federal Rules of Civil Procedure in years. In the words of Chief Justice Roberts himself, they provide a concrete opportunity for actually getting something done[2].

While the 2015 Amendments address several topics, the most important changes affect Rule 26 defining the scope of the discovery and, most notably, electronic discovery. This post provides an overview of the impact and meaning of the 2015 Amendments to Rule 26 and how it will affect everyday federal litigation practice.

Return of Proportionality
A potential game changer with respect to discovery practice is the re-introduction of proportionality. The 2015 Amendments restore six proportionality factors to their original place in Rule 26(b)(1) and point out that parties must consider proportionality in all aspects of discovery. In particular, the Rule 26 was amended, with deletions stricken through and additions underlined:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. [3]

Proportionality: Not a New Concept
The proportionality factors were first adopted in 1983 as an integral part of the scope of discovery provisions, with the objective to deal with the problem of overdiscovery and encourage judges to be more active in identifying and discouraging discovery overuse[4]. Ensuing amendments separated the proportionality language from the integral scope of discovery provision into a separate paragraph[5]. While the 1993 amendments made clear that the separation was intended merely for ease of reference and explicitly encouraged their active judicial use, the courts were nevertheless reluctant to limit the use of the discovery devices[6]. The amendments adopted in 2000 incorporated an otherwise redundant cross-reference and further urged the courts to apply the proportionality limitations, albeit to no avail[7].

It was the 2015 Amendments that finally brought a change. Before the 2015 Amendments, the proportionality factors appeared in subsection Rule 26(b)(2)(C), which governs court-ordered limitations on discovery and, therefore, operated as a limitation used in motions for a protective order[8]. The return of the proportionality factors to their original place in Rule 26(b)(1) makes them again an express component of the very definition of the permissible scope of discovery[9].

Underlying Reasons for the 2015 Amendments
The reasons for doing so are directly connected to the explosion of discoverable information. The technological progress of the last decades has created ample opportunities for abuse of discovery tools as instruments of delay or oppression[10]. With the advance of e-discovery, its cost apparently often exceeds its utility and the potential for abuse is ever more present[11]. As a consequence, one of the goals of integrating proportionality into the definition of discovery in the Federal Rules of Civil Procedure is to reduce its costs and remind both the courts and parties what should and should not be discoverable in any case[12].

The 2015 Amendments further advocate for active judicial involvement and supervision especially early in the case[13]. However, judicial activism is also advised later on in cases where parties cannot overcome on their own important differences leading to ineffective case management[14].

“The Point Is to Make Sure We Don’t Look Just at the Dollars”
The 2015 Amendments point out that monetary stakes are only one of the proportionality factors to be considered[15]. In fact, the courts should approach the factors in an evenhanded manner. Discovery requests addressed to an impecunious party do not automatically foreclose discovery, just as a party’s wealth does not justify limitless requests[16]. Similarly, important personal or public issues often connected to public policy such as discrimination or First Amendment cases must be taken into consideration even if they are involved in litigation over small or no amounts of money at all[17]. Moreover, the 2015 Amendments recognize that some cases involve an information asymmetry where a party seeking discovery of information may know little in comparison to the other party[18]. This asymmetry may justify one party bearing heavier discovery costs than the other.

Deleted Provisions
While the 2015 Amendments added some language, they also deleted three sections of the Rule 26(b)(1) for various reasons.

First, it is the enumerative list of discoverable matters [19] (“. . . existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter”). The Advisory Committee on Civil Rules has explained that the list is so deeply entrenched in practice that the language is simply redundant. Nevertheless, the list of discoverable matters remains the same regardless of eradication of the express language of Rule 26(b)(1)[20].

Second, the 2015 Amendments omit the provision authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action. As it turns out, the scope of discovery with respect to matter relevant to a claim or defense and matter relevant to the subject matter in fact overlaps and the latter was rarely employed[21].

Third, the 2015 Amendments modified a problematic phrase regarding relevant but inadmissible information that appears reasonably calculated to lead to the discovery of admissible evidence. The “reasonably calculated” test was sometimes incorrectly interpreted as a general scope of discovery tied to the probability of discovering admissible evidence which in effect eliminated all other limits[22]. The language is now replaced with a direct statement that information within the scope of discovery need not be admissible in evidence to be discoverable, such as hearsay testimony solicited during a deposition[23]. In this way, Rule 26(b)(1) makes clear that discovery of nonprivileged information not admissible in evidence remains available as long as it is otherwise within the scope of discovery[24].

Relaxation of the Early Discovery Moratorium
Another important change in the 2015 Amendments concerns the time for serving a request for production under Rule 26(d). Prior to the 2015 Amendments, a party could not usually serve any discovery requests before meeting for a conference under Rule 26(f), which typically happens months after a complaint is filed[25]. The 2015 Amendments allow requests for production to be served as soon as twenty-two days after service of process regardless of whether the Rule 26(f) conference already took place[26].

The aim of allowing early requests for production was to make Rule 26(f) conferences more productive. Specifically, negotiations at the conference may be more fruitful with the knowledge gained from each party’s initial set of requests for production, thus facilitating a more focused discussion[27]. On the other hand, it is arguable whether parties will seize this new opportunity because doing so would provide the opposing party more time to prepare objections[28]. Furthermore, the early requests may turn out to be inconsistent with agreements later concluded at the Rule 26(f) conference[29].

Effect on (Pending) Matters
Although it would be premature to jump to conclusions as to the impact of the 2015 Amendments, there are already some signs that courts have been making use of the amended Rule 26 and its proportionality principles. For example, in Henry v. Morgan’s Hotel Group, a court in the Southern District of New York declined to grant a Rule 45 subpoena because the discovery request for “all documents and communications” was determined to be overly broad and the requested information was not relevant to the disputed issues[30].

Similarly, in Gilead Sciences v. Merck in the Northern District of California, the court declined to grant additional discovery[31]. The court found that no reason had been provided to doubt the proof tendered by the plaintiff, and given the cost and potential delay, additional discovery on that topic was precisely the kind of disproportionate discovery that Rule 26 was intended to preclude[32].

Conclusion
While it is undeniable that the 2015 Amendment stirred up the litigation waters of federal court discovery, its true impact on practitioners and litigants and potential to reshape certain discovery practices remains to be seen. Finally, further information about the 2015 Amendments may be found in the entire amendments packet sent to Congress.

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Tereza Horáková is a graduate of Charles University, Prague, Czech Republic, and a dual degree student at Nova Southeastern University College of Law where she is a research assistant to Professor Michael J. Dale. She can be reached at tereza@hotmail.cz.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

[1] John G. Roberts, 2015 Year-End Report on the Federal Judiciary 11 (2015).

[2] Id.

[3] Fed. R. Civ. P. 26(b)(1).

[4] See Fed. R. Civ. P. 26 Advisory Committee’s Notes to 2015 Amendment (hereinafter 2015 Notes).

[5] Id.

[6] Id.

[7] Id.

[8] Leeron Morad, Andrew Bramhall, Digging Through The New Federal Rules of Civil Procedure, Law360 (May 26, 2015), http://www.law360.com/articles/654798/digging-through-the-new-federal-rules-of-civil-procedure (hereinafter Law 360).

[9] Id. 17, 2015), http://www.metrocorpcounsel.com/articles/32726/just-follow-rules-frcp-amendments-could-be-e-discovery-game-changer.

[10] 2015 Notes.

[11] Jennifer A. Brennan, Hon. John M. Facciola, Hon. Mary M. Rowland, Just Follow the Rules! FRCP amendments could be e-discovery game changer, Metropolitan Corporate Counsel (Jul. 17, 2015), http://www.metrocorpcounsel.com/articles/32726/just-follow-rules-frcp-amendments-could-be-e-discovery-game-changer.

[12] Law 360.

[13] 2015 Notes.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Law 360.

[19] 2015 Notes.

[20] Id.

[21] Id.

[22] Id.

[23] Jennifer A. Brennan, Wendy Butler Curtis, FRCP Amendments: The Early Returns Courts Show Signs of Heeding the Call for Early and Active Management, Metropolitan Corporate Counsel (Mar. 3, 2016), http://www.metrocorpcounsel.com/articles/33591/frcp-amendments-early-returns-courts-show-signs-heeding-call-early-and-active-managem.

[24] Id.

[25] Law 360.

[26] Fed. R. Civ. P. 26(d).

[27] Law 360.

[28] Id.

[29] Id.

[30] Henry v. Morgan’s Hotel Grp., Inc., No. 15-CV-1789 (ER)(JLC), 2016 WL 303114, at *2 (S.D.N.Y. Jan. 25, 2016).

[31] Gilead Scis., Inc. v. Merck & Co, Inc., No. 5:13-CV-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016).

[32] Id.

Service of Process Outside the United States: A Basic Overview

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written by NITA guest bloggers Tereza Horáková and Michael J. Dale

Over the last couple of decades, international commerce has experienced a dramatic boom. Such an environment quite naturally provides fertile ground for transnational litigation. For example, suppose that an American owner of a chain of sports bars visits the hidden gem of Central Europe, the Czech Republic. Stunned by the delicious taste of the local “liquid gold,” she enters into a long-term contract for shipments of Czech beer, with the intent to sell the beer in her sports bars. Regretfully, the Czech contractor, albeit experienced in the beer export trade, turns out to be an unreliable partner more interested in tasting his product than conducting business. After the American owner wires the agreed payment, the shipment of beer never arrives. The American sports bars owner decides to initiate litigation in the U.S. court against the contractor, who resides in the Czech Republic.

Leaving aside the questions of subject matter jurisdiction and personal jurisdiction, one of the first crucial issues she must resolve is the question of how to serve process on the foreign defendant outside the United States. The term service of process, of course, refers to the requirement to duly notify the defendant of the initiated litigation with a copy of the complaint (or its equivalent) filed by the plaintiff and a summons issued by the court clerk commanding the defendant’s appearance[1]. In fact, proper service of process in compliance with constitutional and statutory requirements is a necessary prerequisite to establish jurisdiction[2]. Only with proper service may the court be sure that the defendant has been made aware of the claims against it, and of the need to answer those charges in order to avoid entry of a default judgment. Accordingly, all plaintiffs must at one point or another deal with the issue of service of process.

A key question that this blog post discusses is, how do you do that? This post provides a basic overview of the most utilized methods of service of process on defendants outside the U.S. In turn, it analyzes the main issues related to each of the described methods in federal and state proceedings.

Federal Proceedings
The rules governing service of process in federal proceedings are found in Rule 4(f) of the Federal Rules of Civil Procedure. By a cross-reference, the framework set out in Rule 4(f) applies to both natural persons and legal entities[3].

The primary method of service is by any internationally agreed means of service reasonably calculated to give notice, such as that authorized by the Hague Convention on the Service of Judicial and Extrajudicial Documents[4]. In case there is no internationally agreed means, the process is to be served by a method that is reasonably calculated to give notice, such as in a manner prescribed by the law of the foreign country where the service is to be executed, or as directed by the respective foreign authority in response to a letter rogatory, or by personal delivery or by mail requiring a signed receipt, provided that such ways are not prohibited by the foreign country’s law. Lastly, Rule 4(f) allows any other means ordered by the U.S. courts which are not prohibited by international agreements.

Internationally Agreed Upon Means of Service
The internationally agreed means include two important multilateral treaties, the Hague Convention and the Inter-American Convention. As ratified international treaties, the Supremacy Clause grants them the status of the supreme law of the land[5]. Whether the respective international treaty automatically preempts all other methods of service must be determined on a case-by-case basis based on the language of the treaty[6].

The Hague Convention
Possibly the most important platform for service abroad is the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter Hague Convention)[7]. Its popularity may be attributed to its efficiency, with 66 percent of the requests being executed within two months (hereinafter Outline)[8]. As of December 2015, there were sixty-nine signatories including the U.S. and the Czech Republic[9].

For the Hague Convention to be applicable, the document to be transmitted from one signatory state to another must relate to a civil or commercial matter and the address for the recipient of the service must be known[10]. U.S. courts have interpreted the language in the Hague Convention as exclusive[11]. Therefore, if all of the requirements are met the convention must be applied and preempts the use of all other methods of service[12].

The Hague Convention provides one main and several alternative channels of transmission of the documents to be served. The main channel is from the judicial officers of the requesting country (referred to as “state”) to the so-called Central Authority of the receiving country. All signatory countries must denominate a Central Authority that both receives and executes requests for service of process[13]. To make a request, one must file the Hague Convention Form USM-94 available in any U.S. Marshals Service office together with two copies of the documents to be served (hereinafter Practice Note)[14]. The request can only be forwarded to the Central Authority (in the U.S., it is the Department of Justice) from what is described in the convention as a “competent authority.”[15] In the U.S., the competent authority includes any court official or attorney[16]. The service rendered by the Central Authority is generally free of charge, but some jurisdictions require a translation of the documents to be served[17].

The Hague Convention further furnishes several alternative channels of transmission, most importantly the international postal channels and direct service through an agent of the receiving state[18]. There is a split in the U.S. courts as to whether the postal channels relate only to judicial documents such as motions or to service of process as well. Ultimately, one must be cautious to check the position of the circuit where the action is filed[19]. Service through an agent means service through the judicial officers, officials, or other “competent persons” of the state of destination[20]. The latter phrase has been construed as anyone who would be competent to serve process within the destination state under that state’s law[21].

Once the service is executed, the chosen agent is required to provide the party requesting the service with evidence of the service[22]. The party must file the evidence with the court where the litigation is pending as a proof of extraterritorial service[23]. The procedure for filing the proof is dependent on local rules of procedure and varies from state to state[24].

Inter-American Convention
The other pivotal international treaty is the Inter-American Convention on Letters Rogatory and its Additional Protocol, adopted in 1975 in Panama (hereinafter Inter-American Convention)[25]. The Inter-American Convention constitutes an important supplemental means of service in countries of the Central and South Americas, which are mostly not a party to the Hague Convention. The Inter-American Convention constitutes a non-exclusive method of effecting service between its signatories[26].

Like the Hague Convention, the Inter-American Convention applies in proceedings in civil and commercial matters[27]. However, the Inter-American Convention allows the signatories to extend its applicability to other areas as well[28]. So far, only Chile has made use of this opportunity and broadened the scope to cover criminal and administrative cases[29].

With respect to channels of transmission, the Inter-American Convention is limited to letters rogatory—in other words, official requests from one state to another to assist with the administration of justice[30]. All signatories must establish a Central Authority for receiving requests and executing the service[31]. A party wishing to make a request for service must file Form USM-272 and 272A and the documents to be served, all in three copies. The party must obtain the seal and signature of the court clerk that issues the process, as well as the signature and stamp of the Central Authority of the country in which the court sits, which poses an extra financial burden. Furthermore, all documents to be served must be translated into the language of the destination country[32].

The Inter-American Convention has been subject to criticism. Some states have failed to designate Central Authorities at all, while others claim not to receive requests transmitted by the U.S. Central Authority[33]. Moreover, the process is said to take up from six months up to a year—that is, when it actually works.

Other Means
When there is no applicable international treaty or when the treaty is non-exclusive (such as the Inter-American Convention), service may be executed by any of the procedures under federal Rule 4(f)(2) and Rule 4(f)(3), provided they are reasonably calculated to give notice of the service.

  • Law of the foreign country – Rule 4(f)(2)(A). Generally, a plaintiff cannot choose a method of service in a foreign country that violates the law of that country[34]. It is advisable to choose a method that conforms to the local practice.
  • Letter rogatory or letter of request – Rule 4(f)(2)(B). Letters rogatory are the oldest bilateral procedure for obtaining information in a foreign jurisdiction[35]. Also known as letters of request, they are formal requests from a court in which an action is pending to a court in a foreign country seeking international judicial assistance[36]. In some countries, service by letters rogatory is the only recognized method of service. Unlike the above mentioned international conventions, letters rogatory may accommodate service in criminal proceedings as well. However, letters rogatory are a time-consuming, cumbersome process and need not be utilized unless there are no other options available, given the routine time delays of up to a year or more.
  • Personal service by agent – Rule 4(f)(2)(C)(i). Provided that the foreign country’s law permits such a method, personal service by a local agent may prove to be the most expeditious way of service. Lists of persons available for service abroad are accessible at the U.S. embassies and consulates. Due to the intricacies of various foreign legal systems, it is advisable to consult with a local attorney.
  • Service by mail – Rule 4(f)(2)(C)(ii). Provided that the foreign country’s law permits such a method, service by mail with a signed receipt is a viable option in many countries in the world.
  • Court-ordered means – Rule 4(f)(3). The courts may order such methods of service that are not prohibited by international agreements even if not explicitly recognized by them.

Service in State Court Proceedings
In case the American owner of the sports bars decides to commence the action in a state court, the analysis is somewhat similar. The preemptive powers of international treaties apply to proceedings in the federal courts as well as state courts[37]. If there is no applicable treaty, the respective state law where the action is filed governs[38]. Naturally, the procedural rules regarding extraterritorial service widely vary from state to state.

For example, New York, California, and Florida laws allow process to be served outside of the state in the same manner as service is made within the state[39]. In addition, New York law allows process to be served outside the state by either a New York resident who is authorized to serve process within New York or anyone authorized to serve process under the laws of the foreign country[40]. California supplements the regular methods by service by first-class mail, postage prepaid, requiring a return receipt together with a presumption of delivery on the tenth day after such mailing[41].

Conclusion
For more detailed discussion of the methods of service of process outside the United States, further information may be found at the websites of the Department of State, Hague Convention, or the Practical Law Company Practice Note.

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Tereza Horáková is a graduate of Charles University, Prague, Czech Republic, and a dual degree student at Nova Southeastern University College of Law where she is a research assistant to Professor Michael J. Dale. She can be reached at tereza@hotmail.cz.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

 

[1] Legal Information Institute, Service of Process, https://www.law.cornell.edu/wex/service_of_process (last visited Feb. 12, 2016).

[2] Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 444-45 (1946).

[3] Fed.R.Civ.Pro. 4(h)(2).

[4] Fed.R.Civ.P. 4(f).

[5] U.S. Const. art. VI, cl. 2; Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).

[6] Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 640-42, (5th Cir. 1994).

[7] Hague Service Convention, Nov. 15, 1965, 20 U.S.T. 361.

[8] Outline: Hague Service Convention, https://assets.hcch.net/docs/f4ccc07b-55ed-4ea7-8fb9-8a2b28549e1d.pdf (last visited Feb. 12, 2016).

[9] Status Table of the Contracting Parties, https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Feb. 12, 2016).

[10] Outline, supra, n. 8, at 1.

[11] Shenouda v. Mehanna, 203 F.R.D. 166, 170 (D.N.J. 2001).

[12] Eli Lilly & Co. v. Roussel Corp., 23 F. Supp. 2d 460, 470 (D.N.J. 1998).

[13] Hague Convention, supra, n. 7, at art. 2.

[14] Practical Law Company, International Litigation: Serving Process outside the US, Practice Note, http://www.proskauer.com/files/News/5b04a3dd-34ab-40f4-a64f-3bc52468277a/Presentation/NewsAttachment/db2a546c-d01c-4ce3-815a-43df368f05c8/Proskauer_122011_Practical%20Law%20Company_Scullion_Berkowitz_McNew_International%20Litigation_Serving.pdf(last visited Feb. 12, 2016), at 8.

[15] Hague Convention, supra, n. 7, at art. 3.

[16] USA Central Authority and Practical Information, https://www.hcch.net/en/states/authorities/details3/?aid=279 (last visited Feb. 12, 2016).

[17] Outline, supra, n. 8, at 2; Hague Convention, supra, n. 7, at art. 12.

[18] Hague Convention, supra, n. 7, at art. 10.

[19] Compare Brockmeyer v. May, 383 F.3d 798, 803 (9th Cir. 2004), with Bankston v. Toyota Motor Co., 889 F.2d, 172, 173-74 (8th Cir. 1989).

[20] Hague Convention, supra, n. 7, at art. 10(c).

[21] Koehler v. Dodwell, 152 F.3d 304, 307-08 (4th Cir. 1998).

[22] Hague Convention, supra, n. 7, at art. 6.

[23] Fed.R.Civ.P. 4(l)(2).

[24] Practice Note, supra, n. 14, at 4.

[25] Inter-American Convention on Letters Rogatory, Jan. 30, 1975, S. Treaty Doc. No. 27 (1984), reprinted at 28 U.S.C. § 1781.

[26] Hein v. Cuprum, S.A. de C.V., 136 F. Supp. 2d 63, 70 (N.D.N.Y. 2001).

[27] Inter-American Convention, supra, n. 25, art. 2.

[28] Id. at art. 16.

[29] Inter-American Convention on Letters Rogatory, General Information on the Treaty, http://www.oas.org/juridico/english/sigs/B-36.html (last visited Feb. 12, 2016).

[30] Ralph Folsom, Principles of International Litigation and Arbitration (Concise Hornbook Series), 323 (1st ed. 2015).

[31] Practice Note, supra, n. 14, at 8.

[32] Inter-American Convention, supra, n. 25, art. 5.

[33] Practice Note, supra, n. 14, at 8.

[34] David J. Levy, International Litigation: Defending and Suing Foreign Parties in U.S. Federal Courts, 6 (2004).

[35] Compulsion Over Comity: The United States’ Assault on Foreign Bank Secrecy, 12 NW. J. INT’L L. & BUS. 454, 471.

[36] Service of process, https://travel.state.gov/content/travel/en/legal-considerations/judicial/service-of-process.html (last visited Feb. 12, 2016).

[37] U.S. Const. Art. VI, cl. 2.

[38] Practice Note, supra, n. 14, at 10.

[39] N.Y. C.P.L.R. 313; West’s F.S.A. § 48.194; West’s Ann. Cal. C.C.P. § 415.40.

[40] N.Y. C.P.L.R. 313.

[41] West’s Ann. Cal. C.C.P. § 415.40.

What Does It Mean to Use Extrinsic Evidence on Cross-Examination?

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written by NITA guest bloggers Andree Quaresima and Michael J. Dale

Function and Scope of Cross-Examination
Cross-examination is an important part of trial proceedings. There are several purposes connected with cross-examination, such as testing the credibility of the witness, inquiring into relevant issues and facts to build one’s case, and/or challenging the opposing party’s theory of the case. To achieve these objectives, there are different examination tools available to lawyers. The introduction of extrinsic evidence is undeniably one of them. Evidence that is not legitimately before the court is defined as extrinsic. In particular, for the scope of the following discussion, extrinsic is used to indicate evidence other than the questions asked to the witness being cross-examined; it can be a document, another witness’s testimony, a videotape, an audio recording, and so on. However, the scope of cross-examination is limited, and this fact affects the introduction of extrinsic evidence. This blog post discusses the use of extrinsic evidence at trial.

There are two approaches determining the scope of the subject matter of cross-examination. They are the American rule—the majority approach, as well as the one adopted in the Federal Rules of Evidence—and the English rule. Under the American rule, cross-examination is limited to the subject matter of the direct examination and any matters affecting the credibility of the witness. Under the broader English rule, a witness may be cross-examined on any relevant matter. Yet, even in the majority of jurisdictions following the American rule, large discretion is left to the court to allow evidence beyond the stated subject matter. The jurisdictions following the English Rule are Alabama, Kentucky, Missouri, New Hampshire, North Carolina, Ohio, and Texas. Minnesota is a peculiar example because its law represents a mix of the two approaches: the English rule applies only to criminal cases, while the American rule governs any other case. See MINN. R. EVID. 611.

The American Rule
Given the undeniable predominance of the American rule throughout the various jurisdictions in the United States, the discussion focuses on how to introduce extrinsic evidence on cross-examination given the limiting nature of the American rule. The limitation on cross-examination under the American Rule is most commonly referred to as barring questions beyond the scope of direct examination. It is based upon the proposition that the parties should develop their theory of the case by calling their own witnesses. See, e.g., Penn v. State, 574 So.2d 1079 (Fla. 1991). Evidence sought to be introduced on cross-examination that is beyond the scope of direct examination is also referred to as collateral evidence. The purpose of the American rule is to prevent undue confusion of issues and unfair surprise by extrinsic testimony. See People v. Schwartzman, 24 N.Y.2d 241 (N.Y. 1969). Under the collateral matter rule, the cross-examiner is bound by a witness’s answers to questions on collateral matters, except for the witness’s general reputation for truth and veracity. See Casa de Meadows, Inc. v. Zaman, 908 N.Y.S.2d 628 (N.Y. App. Div. 2010). In other words, counsel cannot introduce extrinsic evidence to contradict a witness’s statement concerning collateral matters. A collateral matter is one that has no relevancy to prove or disprove any issue in the action. People v. Rodriguez, 971 P.2d 618, 622 (Cal. 1999).

The boundaries of cross-examination are defined in Federal Rule of Evidence 611—mirrored, for example, in section 90.612 of Florida Codes—which states, “[c]ross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.” Therefore, the introduction of extrinsic evidence on cross-examination is not always allowed, and the discerning factor is the nature of the evidence that is sought to be introduced. In the end, the admissibility of the evidence depends on the purpose for which admission of the evidence is sought.

The Federal Rules and Examples
A common scenario in which counsel seeks to introduce extrinsic evidence, such as a document, a videotape, or the results of a drug test, is when counsel wants to impeach the witness. For example, opposing counsel may be cross-examining a witness who denies having written a letter to the defendant. The lawyer would try to introduce into evidence the letter itself to show that the witness was lying. Alternatively, even before questioning the witness about the underlying facts, counsel may seek to introduce extrinsic evidence to discredit the witness’s credibility. For such purposes, the Federal Rules of Evidence allow the introduction of extrinsic evidence on cross-examination only if it is related to the witness’s character for truthfulness. FED. R. EVID. 608. If the witness denies making a determined assertion—as in the previous example—counsel can introduce extrinsic evidence proving the prior inconsistent statement. FED. R. EVID.614. The rules also allow the use of extrinsic evidence to show prior conviction of the witness. FED. R. EVID. 610.

As a general rule, since cross-examination is limited to the scope of direct examination, extrinsic evidence cannot be introduced when it relates to collateral matters. Therefore, the court would generally consider inadmissible extrinsic evidence to rebut a witness’s statement on a collateral matter.

Of course, a basic exception to this rule of limiting cross-examination to that covered on direct is when the witness himself opens the door for questioning beyond the scope of the direct examination. A witness opens the door by making a specific assertion unrelated to the case at bar; at that point, counsel on cross-examination may introduce extrinsic evidence—that would otherwise be collateral and hence not admissible—to contradict such factual statement. Nonetheless, the limitations impose on the scope of cross-examination are still subject to the court’s discretion. See Wilson v. State, 72 So.3d 331, 334 (Fla. App. 2011).

Examples from the States
It is worth briefly examining several major jurisdictions’ approach to the issue. The analysis will focus on Florida, California, and New York.

Florida
In theory, the law in Florida is slightly different from the Federal Rules, but the results are almost the same. Indeed, even though section 90.609 of the Florida Statutes is the equivalent to Federal Rule 608, there is no mention of the use of extrinsic evidence. Rather, sections 90.610 and 614 of the Florida Statutes allow extrinsic evidence of prior convictions and prior inconsistent statements, mirroring the content of the Federal Rules almost without any change. Additionally, the collateral matter rule applies in Florida as well. The test for determining whether a matter is collateral and not admissible is whether the impeaching evidence would be admissible for any purpose other than the witness’s contradiction.

There are two kinds of evidence that pass this test in Florida: 1) evidence that is relevant to independently prove a material fact or issue, and 2) evidence that would discredit a witness by pointing out the bias, corruption, or lack of competency of the witness. An example of the first category is when a defendant is charged with a certain crime where the intention to defraud is a crucial element (grand larceny, for example), and the prosecutor on cross-examination of the defendant tries to introduce documentary evidence of prior convictions. Where the documents proving previous crimes tend to prove defendant’s intent to defraud, the court would allow them into evidence.

As for the second category, it concerns cross-examination as to bias regardless of whether the subject has been mentioned on direct examination. Therefore, the admission of extrinsic evidence of this second type is broader than the first type. Indeed, bias is considered always material and never collateral. However, it is necessary to make the following distinction. If the witness denies bias on cross-examination, counsel may introduce extrinsic evidence contradicting the witness’s statements. If the witness admits the facts as to bias, counsel is prohibited from introducing extrinsic evidence of bias. FLA. STAT. § 90.608(2). There is a further limitation: evidence of bias may be inadmissible if it unfairly prejudices the trier of fact against the witness or misleads the trier of fact. Breedlove v. State, 580 So.2d 605, 609 (Fla. 1991). When counsel seeks to introduce exhibits during cross-examination, some level of discretion is left to the court. However, courts are not always “generous” because, in some cases, they refused to allow counsel to introduce exhibits on cross-examinations. See King v. State, 89 So.3d 209 (Fla. 2012).

Sometimes the admissibility of extrinsic evidence in Florida has been described as a pure relevancy issue. Such an approach seems closer to the English rule, at least nominally. For example, one appellate court has stated that every time material is offered into evidence to attack witness’s credibility on a material issue, such evidence is relevant according to section 90.401 of the Florida Statutes. Special v. Baux, 79 So.3d 755, 759 (Fla. App. 2011). On the other hand, when the trial court in Special considered such evidence as collateral impeachment, the appellate court interpreted such language as “another way of saying that the line of questioning was irrelevant,” and based its reasoning on the relevancy issue. Id.

California
The California rules of evidence are organized differently from the Federal Rules. The numbering and the titles are distant from the language used in the Federal Rules. However, the following overview of these state systems shows that regardless of the formal organization of the rules, courts tend to follow the federal principles and the results do not considerably differ.
California’s legislation, notwithstanding the formal organization and naming of the rules, mirrors the federal system. California is stricter than Florida in limiting the scope of cross-examination. Even though section 773 of the California Evidence Code states: “A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs,” the courts’ interpretation restricts this delineation of the scope of cross-examination. The questions on cross-examination are still subject to a relevancy check: only relevant issues are admitted. Even though irrelevant evidence was presented on direct examination because of the failure to properly object, the door is not open to questioning into such matters on cross-examination. See, e.g., People v. Smithey, 978 P.2d 1171 (Cal. 1999); People v. Johnson, 40 Cal. Rptr. 105 (Cal. App. 1964).

The collateral matter rule applies in California as well. Here, the test for relevancy on cross-examination is whether the question calls for a response that might have been proved as an independent fact. However, collateral matters are questionable for the purpose of impeachment. The most common situation in which the issue of extrinsic evidence arises is when counsel seeks to impeach the witness in reply to the witness’s denial of some facts or previous statements and introduces evidence proving that the witness is lying. Section 770 of the California Evidence Code allows the introduction of a witness’s prior inconsistent statement when 1) the witness was examined and was given the opportunity to explain or deny, 2) the witness has not been excused from giving further testimony in the action.

New York
The layout of the rules of evidence in New York is different from the other states and the Federal Rules. Interestingly, the New York rules of evidence are included in the rules of procedure and, therefore, are divided between civil and criminal. Notwithstanding this structure, courts tend to apply the same principles governing the federal system and operation of evidence rules, and refer to the Federal Rules to interpret the matters.

Generally, when a witness is testifying to a fact material to the case, the adverse party may challenge the witness either during cross-examination or by introducing other evidence. New York follows the typical collateral matter rule—the introduction of extrinsic evidence is allowed only to reply to the witness’s answers on non-collateral matters. See Casa de Meadows, Inc. v. Zaman, 908 N.Y.S.2d 628 (N.Y. App. Div. 2010). A matter is deemed collateral when 1) the issue is not relevant to some issues in the case other than credibility; 2) proof of the issue is not independently admissible to impeach the witness, and if proven, the issue would show only that the witness had acted deceitfully on a prior unrelated occasion. Beyond these two clear cases of collateral matters, the determination of what evidence can be introduced for the purpose of impeachment lies within the discretion of the trial court. In New York, courts allow extrinsic evidence on collateral matters for impeachment purposes when it relates to the witness’s general reputation for truth and veracity.

Keeping an Eye on the Hearsay Problem
Once the admissibility of the extrinsic evidence has been determined, there may still be an issue of hearsay that may lead to the exclusion of the evidence. For instance, on cross-examination of a plaintiff in a motor vehicle accident, defendant’s counsel seeks to introduce the accident report to prove his case and/or contradict the plaintiff. In such cases, the accident report may be admitted because it may contain an admission of a party opponent. See McCoy v. Gorenstein, 282 A.D. 984, 125 N.Y.S.2d 683 (3d Dep’t 1953). Otherwise, the evidence would be excluded because of the hearsay rule. This example is a simple reminder of the necessity to take into consideration hearsay, even though the extrinsic evidence is otherwise admissible because it is non-collateral, relates to bias, or is aimed at proving the witness’s character for truthfulness.

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Andree Quaresima is a graduate of Roma Tre University in Rome, Italy, and is a dual degree student at Nova Southeastern University College of Law. She can be reached at aq91@nova.edu.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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