Cross-Border Discovery and Witness Considerations in Germany and Japan

By Sara Alexandre

The potential for legal liability for products is as pervasive as their presence across the world. Accordingly, products liability litigation often involves parties from differing jurisdictions, whether those jurisdictions exist within a single nation or span several countries. Such litigation can be complex, expensive and time consuming. Managing a dispute on a transnational scale can take on a life of its own, particularly when it comes to the most onerous part of litigation — discovery. Obtaining necessary, relevant documents and testimony located in various parts of the globe requires specialized tools unique to each locale.

The following is a brief and general overview of the means by which parties involved in multinational litigation, be it products liability or other commercial matters, may acquire information helpful to their cases. The three countries cited are manufacturing powerhouses routinely involved in products liability disputes: the United States, Germany and Japan.

The discovery rules governing the U.S. judicial system are fueled by common law. The rules are designed to empower dowed with subpoena powers to compel discovery, and disclosure rules governing federal cases can compel certain parties to exchange information with their adversaries. A party’s violation of any one of the myriad discovery rules can trigger a court to impose sanctions, civil penalties and even default judgment in favor of the moving party.

The expansive gathering powers afforded to parties in the United States contrast starkly with those extended by civil law in countries such as Germany and Japan. This dichotomy is especially noticeable when litigants initiating action in the United States seek pre-trial documents and testimony from information resources abroad.

DISCOVERY TIGHTLY CONTROLLED IN GERMANY Discovery as contemplated within the United States does not exist in Germany. After initiation of an action, a court will either set a preliminary hearing where parties can expound upon relatively simple matters, or order briefs detailing their stance prior to the hearing. Before judgment, the court uses its discretion as evidence from witnesses who are German residents, as provided by the Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters of 1970 (Hague Evidence Convention). Interestingly, the main goal of the Convention was to resolve different discovery procedures that are in effect in common law countries, such as the United States, and civil law countries, such as Germany. Generally, the Hague Evidence Convention provides that a participating country may seek the assistance of another contracting state by issuing a Letter of Request. With respect to pre-trial discovery, Germany will allow requests for the deposition of witnesses concerning the substance of certain documents. However, pursuant to Article 23 Sara Alexandre is an attorney at Swift, Currie, McGhee & Hiers, LLP. Her practice includes defending clients in the areas of products and premises liability, construction and environmental law, and catastrophic injury and wrongful death. sara.alexandre@ swiftcurrie.com

SHOULD THE JAPANESE COURT DEEM A U.S. ATTORNEY’S METHOD OF EVIDENCE COLLECTION HAS EXCEEDED WHAT THE CCP OR THE CONSULAR CONVENTION ALLOWS, IT IS AUTHORIZED TO REFUSE ENFORCEMENT OF ANY JUDGMENT.

litigants to obtain, prior to trial, all nonprivileged information concerning the claim or defense of any party reasonably believed to lead to the discovery of admissible evidence. Generally, parties are authorized to obtain evidence without the interference of the courts. To acquire the information, parties can employ discovery tools, including written interrogatory questions, requests for production of documents, and depositions of witnesses.

If a party refuses to divulge the requested information, the requesting party may seek an order from the court compelling compliance. Courts are ento the pieces of evidence it will permit the parties to tender and the witnesses it will allow to offer testimony on the day of the hearing.

Private litigants and their legal counsel are precluded from engaging in evidence taking, as it is considered a public judicial function. Accordingly, foreign courts, commissioners and lawyers are likewise prohibited from obtaining evidence in Germany, as these attempts are viewed a usurpation of “its sovereignty, even if German witnesses comply voluntarily.”

However, German courts will facilitate a U.S. court’s acquisition of limited of the Convention, it has maintained a refusal to fulfill Letters of Request seeking the pre-trial discovery of those documents.

The Hague Evidence Convention is not the sole authority governing discovery efforts in Germany undertaken by U.S. courts. Per the landmark Supreme Court case Société Nationale Industrielle Aerospatiale v. U.S. District Court for the South District of Iowa (1987), the convention does not possess “exclusive discovery procedures a Federal District Court must use [to] seek continued on page 47

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evidence abroad.” Rather, the Aerospatiale court held the Convention provided “optional procedures to facilitate discovery” that did not prevent litigants from using “normal discovery methods of the Federal Rules of Civil Procedure.”

Section 1783 of 28 U.S. Code allows a U.S. court to subpoena a person in a foreign country to produce documents, items or the person as a witness. However, this provision cannot supplant “blocking statutes” prohibiting the discovery of information falling under the protection of German laws concerning privacy, privilege or confidentiality. Additionally, this authority can only compel the compliance of a U.S. resident or national. As brought out in Relational, LLC v. Hodges (2010), out of the Seventh Circuit, “foreign nationals are beyond the court’s subpoena power.”

CASES MOVE SWIFTLY IN JAPAN Japan’s legal system is modeled after Germany’s civil law system and mirrors the limited discovery allowed there. Generally, litigation in Japan is viewed as relatively fair, effective and inexpensive. Japan’s system of rotating its justices is viewed as rendering its judicial system less susceptible to corruption. Further, matters may make it to trial in as little as nine months from the start of the action. The absence of an extensive discovery process contributes to the efficiency of Japanese courts: Pre-trial discovery is largely considered superfluous.

Section 5 of Japan’s Code of Civil Procedure (CCP) governs Japan’s discovery process, which is largely administered by the court with the specific goal of obtaining evidence for use at trial. Consequently, a lawyer’s scope of fact gathering will be restricted to information that the court decides has satisfied Japan’s standard of evidence. Article 219 of Section 5 provides that the requester of information must first submit a request for specific documen

THE HAGUE EVIDENCE CONVENTION IS NOT THE SOLE AUTHORITY GOVERNING

DISCOVERY EFFORTS IN GERMANY

UNDERTAKEN BY U.S. COURTS.

tary evidence to the court, which will order the production of the document if it agrees. Only the court has the power to direct the collection of evidence. Hence, a court will not grant evidentiary status to information obtained without the court’s involvement. There are no formal rules empowering Japanese attorneys to compel an adversary’s response. They must rely on the opposing side’s willing cooperation.

Unlike Germany, Japan is not a contracting state of the Hague Evidence Convention. The Consular Convention, which was executed between Japan and the United States in 1963, is a bilateral treaty facilitating the taking of evidence from within the member country. Although a special arrangement exists between Japan and the United States, this does not necessarily mean smooth sailing for U.S. litigants when attempting to obtain evidence. Certain restrictions present a continuing challenge, including the following:

• Only a U.S. attorney or recognized official representative may collect evidence, and it must be offered voluntarily. • U.S. courts are effectively toothless when it comes to compelling the production of evidence or adherence to stateside discovery rules. • The Consular Convention does not expressly entitle a U.S. attorney to obtain testimony or evidence from witnesses; they must rely on the willingness of witnesses to voluntarily offer information.

What is more, should the Japanese court deem a U.S. attorney’s method of evidence collection has exceeded what the Consular Convention allows, the court is authorized to refuse enforcement of any judgment considered to be grounded on such activity. Consequently, the practical effect is that despite the Consular Convention, parties initiating litigation in the United States do not directly engage in efforts to obtain discovery in Japan for fear of risking the court’s non-enforcement of issued judgments.

Products are an inextricable component of life; but it is only when something goes wrong or an injury occurs that an action is filed and the design and manufacturing comes under intense scrutiny. Often, key documents, witnesses and related information connected to products in dispute are situated within the three manufacturing giants discussed above: the United States, Germany and Japan. Although the far-reaching authority for parties to obtain discovery in the United States at all stages of litigation is allowed, parties conducting transnational litigation out of the U.S. court system face a plethora of obstacles and restrictions, particularly during the pre-trial phase, when seeking to obtain documents and testimony from other countries, including Germany and Japan.

In order to successfully overcome the challenges of discovering evidence across international lines, U.S. litigants must be equipped and willing to expend time, effort and resources to satisfy the requirements of the country where the evidence originated. Such considerations are part and parcel of preparing for multinational litigation. However, this article has only discussed these concerns in a broad and general fashion. Depending on the specific circumstances of a matter, access to relevant materials may involve additional layers of complexity and challenges.