{"id":753,"date":"2023-10-15T12:47:46","date_gmt":"2023-10-15T12:47:46","guid":{"rendered":"https:\/\/germanamericanlegal.com\/?page_id=753"},"modified":"2023-10-15T12:52:45","modified_gmt":"2023-10-15T12:52:45","slug":"cross-border-litigation-germany-and-usa","status":"publish","type":"page","link":"https:\/\/www.germanamericanlegal.com\/ja\/cross-border-litigation-germany-and-usa\/","title":{"rendered":"\u30c9\u30a4\u30c4\u3068\u30a2\u30e1\u30ea\u30ab\u306e\u56fd\u5883\u3092\u8d8a\u3048\u305f\u8a34\u8a1f"},"content":{"rendered":"\t\t
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What We Do Best<\/h3>\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t
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Cross border litigation - Germany and USA<\/h1>\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t
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Challenges and opportunities in transnational litigation \u2013 Overcoming the Justizkonflikt between Germany and the United States 2013
by Alexander Thorlton, Esq.<\/h1><\/div><\/div><\/div><\/div><\/div><\/div><\/div><\/div><\/div><\/div><\/div>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t
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I. Introduction<\/h1>

One of the earliest discovery disputes between Germany and the U.S. occurred in 1874, when U.S. lawyers attempted to take sworn testimony from German citizens in Germany for the use in a U.S. trial.[1]<\/a>\u00a0 The U.S. argued that the evidence was properly taken by a U.S. court-appointed commissioner and therefore all nations should support such an undertaking.[2]<\/a>\u00a0 Germany countered by offering the assistance of its courts if the U.S. would recognize that the proper procedures in gathering evidence across borders are letters rogatory.[3]<\/a>\u00a0 There is no evidence of any further conflict between the two nations arising around this issue.[4]<\/a>\u00a0\u00a0 This is because in the aftermath of WWII until around 1970 only very few U.S. cases required the gathering of evidence on German soil.[5]<\/a>\u00a0 It was however the first sign of what would later become known as the Justizkonflikt<\/em> (judicial conflict) between Germany and the U.S.<\/p>

With an increase in transnational commerce came increased transnational litigation.\u00a0 This was true especially in the areas of products liability, anti trust, and securities litigation.[6]<\/a> \u00a0Whenever a party or piece of evidence is located in a foreign country procedural matters become more complex.\u00a0 This is especially true when the parties hail from different legal traditions.\u00a0 In this paper I will analyze the different challenges that arise when the U.S. common law meets the civil law tradition from Germany in transnational lawsuits.\u00a0 Specifically, I will focus on the challenges of obtaining documentary evidence in an equitable manner for both parties.\u00a0 Because the two legal systems involved have very different approaches to the discovery of evidence, there often is potential for conflict. \u00a0However, this article will not pass judgment on which system reigns supreme.\u00a0<\/p>

Instead I will analyze the current framework for judicial cooperation between the two countries in Section 2 based on their respective domestic legal systems and then illustrate the reasons for the continued conflicts in Section 3.\u00a0 Drawing from lessons developed in international commercial arbitration in Section 4, I will suggest changes to U.S. law in order to improve the fairness and equity of transnational litigation between parties from Germany and the U.S.\u00a0 Specifically, I suggest an amendment to the federal statute that grants U.S. style discovery to foreign litigants.\u00a0 The amendment would require a guarantee of reciprocity to U.S. litigants in obtaining similar discovery abroad.\u00a0 While such an action would certainly not solve all challenges in transnational litigation, it could limit the inequities that can occur under the current law.\u00a0 Additionally I support the implementation of the American Law Institute (ALI) \/ International Institute for the Unification of Private Law (UNIDROIT) Proposed Rules of Transnational Civil Procedure.[7]<\/a>\u00a0 They represent a workable compromise of the procedural rules regarding the discovery of evidence between civil law and common law systems.<\/p>

II. Current framework for judicial cooperation in transnational litigation\u00a0\u00a0\u00a0\u00a0<\/h1>

At the outset it is helpful to consider the different characteristics of the procedural systems in the two countries and highlight their differences. \u00a0Both systems are dedicated to a just, speedy, and inexpensive resolution of civil disputes.[8]<\/a>\u00a0 However, the means to achieve these common ends differ greatly. \u00a0I will describe the domestic procedural mechanisms for the discovery of evidence, followed by those that address litigation transcending national borders.\u00a0 The domestic mechanisms are important, because they naturally have a strong influence over the transnational stance taken by the individual countries.<\/p>

A. Germany\u2019s domestic \u201cdiscovery\u201d procedures<\/h2>

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 As a civil law country, Germany has a very different approach to the discovery of evidence than the common law. This is true especially in comparison with the U.S.\u00a0 As a matter of fact under German law the term \u2018discovery\u2019 has no recognized legal significance. That is because a party is under no general obligation to provide the opposing party with documents.[9]<\/a>\u00a0 This means that a party must generally produce its own documents to support its claim or defense.\u00a0 One cannot rely on the opposing party the come forward with documents that are not helpful to their own case, even if those documents are in their possession.[10]<\/a>\u00a0 This is known as the Ausforschungsverbot, <\/em>which constitutes the counterpart to the common law\u2019s prohibition of so-called \u201cfishing expeditions.\u201d[11]<\/a>\u00a0 Although it takes a much stricter form, there are a few narrow exceptions to this general rule.\u00a0 A court may, for example, require the production of a document if it deems that document to be material to the case and finds the request is justified.[12]<\/a>\u00a0<\/p>

Another drastic distinction from the common law approach is that documents sought in this way must be described with specificity.\u00a0 It does not suffice to mere request any and all documents relating to a certain subject.[13]<\/a>\u00a0<\/p>

In German civil procedure it is the trial judge rather than the attorneys who controls the entire discovery process.\u00a0 Professor Langbein describes the process by stating that: \u201cthe court rather than the parties\u2019 lawyers take the main responsibility for gathering and sifting evidence, although the lawyers exercise a watchful eye over the court\u2019s work. [N]either the plaintiff\u2019s nor defendant\u2019s lawyer will have conducted any significant search for witnesses or for other evidence unknown to his client. Digging for facts is primarily the work of the judge.\u201d[14]<\/a><\/p>

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Unlike the U.S. developments described below that have lead to a sharp decline in jury trials, German cases are mostly concluded through the standard judicial process.\u00a0 For example, in the Bavarian Landgericht (trial court) 59,192 civil cases were filed in 2008.[15]<\/a> [16]<\/a>\u00a0 Of those 53,231 cases were concluded by the standard judicial process.[17]<\/a><\/p>

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 However, from a U.S. point of view the German civil procedures contain several shortcomings when it comes to uncovering essential facts.[18]<\/a>\u00a0 The common critique is that the German procedures are far too favorable for defendants.[19]<\/a>\u00a0<\/p>

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 B. Germany\u2019s assistance to foreign courts<\/h2>

In response to the increase of transnational litigation in the 1970\u2019s and 1980\u2019s Germany became a member of the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (hereinafter<\/em> Hague Evidence Convention).[20]<\/a>\u00a0 The Hague Evidence Convention was ratified by seventy-three states.[21]<\/a> The Convention\u2019s purpose is to provide effective means to bridge the gap between common law and civil law systems.[22]<\/a>\u00a0 A letter of request can be sent through the Central Authority of the requesting State to the Central authority of another Contracting State.[23]<\/a>\u00a0 There is a longstanding tradition of courts using such letters to obtain international judicial assistance even in the absence of international treaties.[24]<\/a>\u00a0 Although the Convention generally allows letters of request to be in the English or French language, Germany has made a reservation under Article 33, requiring all Letters to be translated into German.\u00a0 Article 3 requires the Letter of Request to contain:<\/p>

\u201c(a) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority; (b) the names and addresses of the parties to the proceedings and their representatives, if any; (c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto; (d) the evidence to be obtained or other judicial act to be performed.\u201d[25]<\/a><\/p>

If granted, this request is then forwarded to the local courts in order to take evidence or perform some other judicial act for judicial proceedings in the requesting State.[26]<\/a><\/p>

However, the Hague Evidence Convention has been interpreted very differently in Germany than it has in the U.S.\u00a0 The Convention states that proceedings may be commenced or merely in contemplation. [27]<\/a> \u00a0Nonetheless, many contracting states, through the use of optional reservations to the Convention, require the proceeding to be at an advanced stage. \u00a0Additionally, evidence should be identified with as much detail as possible, instead of making an open-ended inquiry.[28]<\/a><\/p>

Germany is among those countries that have enacted a law under Article 23 of the Hague Convention that specifically prohibits German courts from granting pre-trial discovery requests originating in foreign courts.[29]<\/a>\u00a0 If the request for discovery is coming from a U.S. court it is seen as a per se request for pre-trial discovery and will therefore likely not be granted.[30]<\/a><\/p>

Through Germany\u2019s reservation under Article 23, letters of request for the purpose of pre-trial discovery have been all but nullified, which further reduces the usefulness of the Hague Evidence Convention.[31]<\/a>\u00a0 Among other reasons, Germany has voiced strong concerns that U.S. style discovery would not adequately provide protection of trade secrets through the visitations of factories.[32]<\/a>\u00a0 Most contracting parties agreed with Germany and found that the Hague Evidence Convention, with the possibility of pre-trial discovery practices, presented a possible threat to state sovereignty over economic regulation.[33]<\/a> \u00a0Thus many states viewed this portion as a violation of international law and made Article 23 reservations.[34]<\/a><\/p>

Finally there are significant delays that can present another difficulty parties encounter when making requests via the Hague Convention\u2019s letters of request.[35]<\/a>\u00a0 Several months can pass between the transmission of the letter of request and the execution of the request by a foreign court.[36]<\/a>\u00a0<\/p>

C. Domestic U.S. discovery practices<\/h2>

In the U.S. the implementation of the Federal Rules of Civil Procedure (hereinafter <\/em>Federal Rules) in 1938, has lead to a continuous growth in emphasis on the discovery process.[37]<\/a>\u00a0 Some have even gone so far as to describe the traditional trial by jury, the hallmark of the common law, as a vestige of the past.[38]<\/a>\u00a0 For example, of the 276,397 cases filed in 2009, only 2,138 actually made it to the jury trial stage.[39]<\/a>\u00a0 The term U.S.-style discovery refers to the broad pre-trial discovery practices that have taken center stage in U.S. civil procedure.[40]<\/a>\u00a0 The discovery proceedings are often time consuming and expensive.\u00a0 They consist of oral testimony, viewing, written responses, and physical examination of persons who are parties.[41]<\/a>\u00a0 Parties can be allowed to \u2018fish\u2019 for new grounds to hold the defendant liable or help the attorney develop legal theories.[42]<\/a>\u00a0 The Federal Rules have given American attorneys tools that empowered them in areas that used to be under the control of trial courts.[43]<\/a><\/p>

U.S. litigants can request discovery regarding \u201cany nonprivileged matter that is relevant to any party’s claim or defense.\u201d[44]<\/a> Under the Federal Rules of Evidence what is and is not relevant to a case is also interpreted fairly broadly.\u00a0 All that is required is \u201cany tendency to make a fact [of consequence] more or less probable than it would be without the evidence.\u201d[45]<\/a>\u00a0 In addition to broad discovery rules the FRCP require parties to make certain disclosures without any discovery requests at all.[46]<\/a><\/p>

In practice the amount of discovery requested varies greatly depending on the type of legal claims the parties make.[47]<\/a>\u00a0 Cases that involve trade regulations, patents, securities fraud, or products liability can create millions of documents.[48]<\/a>\u00a0 These documents often shed light on a companies\u2019 internal operations over a certain period of time.[49]<\/a>\u00a0 Other cases that involve, for example, tort or contract claims can produce only very few discovery requests.[50]<\/a><\/p>

Both within the U.S. and abroad this system of broad pre-trial discovery has received much criticism.[51]<\/a>\u00a0 It is seen as too expensive, time consuming, and burdensome for the party expected to comply with the requests.[52]<\/a>\u00a0 As it will be shown this is especially true from a German perspective that is characterized by a strong interest in protecting trade secrets of its businesses.\u00a0<\/p>

On the other hand allowing parties to request a broad range of evidence from each other has the effect of reducing the possibility of surprise at trial. \u00a0U.S. civil procedure \u201cplace[s] a great emphasis on the need for complete knowledge of the underlying facts of a civil action.\u201d[53]<\/a>\u00a0 More information is available which generally can be seen as increasing the likelihood for the discovery of the truth.\u00a0 This practice has also encouraged settlements of disputes. \u00a0Another aspect of the FRCP encouraging settlements is Rule 68, the offer of judgment.\u00a0 It imposes a cost shift on the party who rejected the offer for a settlement if it does not receive a favorable final judgment.[54]<\/a><\/p>

D. U.S. discovery assistance to foreign courts<\/h2>

Such broad discovery is also available to foreign litigants through a U.S. federal statute that provides the district courts with the authority to grant discovery requests for the use in foreign or international tribunals.[55]<\/a>\u00a0 This is accomplished due to regard for judicial comity, which has been called the golden rule of international relations.[56]<\/a>\u00a0 The United States Supreme Court has defined comity as neither an absolute obligation nor a mere courtesy. Instead \u201cit is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.\u201d[57]<\/a>\u00a0 For those reasons U.S. courts are required to cooperate with foreign courts and also to expect a degree of reciprocity when assistance is required abroad.<\/p>

In order to further comity considerations the U.S. adopted 28 U.S.C. 1782.\u00a0 Through its various amendments it has become a popular tool for foreign parties to obtain documents located within the U.S.[58]<\/a>\u00a0 The statute has two purposes. \u00a0First, Congress wanted to provide efficient ways for foreign litigants to obtain assistance with their discovery requests.\u00a0 Second, Congress felt that through leading by example other countries would be encouraged to grant the same type of assistance to U.S. litigants.[59]<\/a>\u00a0 As it will be shown this second purpose has not been realized as Congress failed to consider the opposition to U.S. style discovery.<\/p>

Under \u00a7 1782 the only requirements are that (1) the person from whom the discovery is requested resides within the district or can be found there, and (2) that the request is made either via letters rogatory by the foreign tribunal or by an interested party.[60]<\/a>\u00a0 Letters rogatory, also known as letters of request, are sent from one court directly to another to obtain assistance for the discovery of evidence.[61]<\/a> \u00a0More common is a request by an interested party directly to the court. This aspect of \u00a7 1782 makes it much more effective for foreign litigants since time delays associated with letters rogatory can be avoided.\u00a0 The term \u201cinterested parties\u201d no longer reserves discovery requests only for parties, instead anyone possessing \u201ca reasonable interest in obtaining judicial assistance\u201d can now make a request under \u00a7 1782.[62]<\/a><\/p>

The U.S. Supreme Court interpreted \u00a7 1782 in the landmark case of Intel Corp. v. Advanced Micro Devices, Inc<\/em>.[63]<\/a>\u00a0 In that case Advanced Micro Devices (AMD) filed an antitrust complaint against the Intel Corporation (Intel).\u00a0 The main question for the purposes of this paper was whether or not the evidence needed to be discoverable in the foreign proceeding before a U.S. district court would be able to grant the discovery request.[64]<\/a>\u00a0 In Intel<\/em> the Court found no foreign discoverability requirement implied in \u00a7 <\/strong>1782, but rather granted discretion to the district courts whether or not to grant a \u00a7 <\/strong>1782 request.[65]<\/a>\u00a0 However the Intel<\/em> decision did not result in the creation of specific factors that would aid a district court judge in determining the influence of a foreign courts opposition to the discovery request.[66]<\/a>\u00a0 A main consideration for the Court was the danger of misinterpretation of foreign law by the district court judges.[67]<\/a>\u00a0 The Court reasoned further that a foreign country would not necessarily take offense to evidence obtained through \u00a7 1782 even if it would not be discoverable in that foreign country under its own rules of civil procedures.[68]<\/a>\u00a0<\/p>

To decide whether or not to grant the request, the district court may look to the Federal Rules of Civil Procedure (hereinafter<\/em> FRCP). \u00a0Nonetheless, consideration is given to the foreign tribunal and in the event that it opposed the discovery, the request might not be granted.\u00a0 Such considerations by the district courts reflect notions of comity and international judicial cooperation rather than a textual requirement of \u00a7 1782.[69]<\/a> \u00a0<\/p>

The Intel decision has been criticized as having interpreted \u00a7 1782 too liberally and thereby unnecessarily expanding the availability of judicial assistance abroad.[70]<\/a><\/p>

The U.S. has taken a very different stance than Germany towards the Hague Evidence Convention through its holding in A<\/em>\u00e9<\/em>reospatiale<\/em>.[71]<\/a> A\u00e9reospatiale is a French manufacturer of airplanes.\u00a0 One of its airplanes crashed in Iowa and injured three U.S. citizens.[72]<\/a>\u00a0 The U.S. citizens filed suit against Aerospatiale in the U.S. District Court for the Southern District of Iowa for negligence in manufacturing and design.[73]<\/a>\u00a0 The plaintiffs attempted to obtain evidence located in France and A\u00e9rospatiale moved for a protective order claiming that the Hague Evidence Convention applies to the discovery request, and not the FRCP.[74]<\/a>\u00a0 Both the trial court and the Court of Appeals rejected A\u00e9rospatiale\u2019s argument and applied the FRCP.[75]<\/a>\u00a0 The Supreme Court agreed by holding that the Hague Evidence Convention is not the exclusive and mandatory way of obtaining evidence abroad.[76]<\/a>\u00a0 Instead, the Court found the FRCP to be the primary procedural mechanism for discovery unless the Hague Evidence Convention was found to be conducive to discovery.[77]<\/a><\/p>

Some commentators criticized the way in which the Court interpreted the Hague Evidence Convention in A\u00e9rospatiale<\/em>.[78]<\/a>\u00a0 The Court viewed the multilateral treaty as if it were a domestic law by looking only at the U.S. actors when attempting to discern the intent of the drafters. \u00a0Specifically, a reference was made to the U.S. delegation regarding the treaty as merely supplemental to national discovery procedures.[79]<\/a>\u00a0 Critics say that as a multilateral treaty the Court should have focused on the \u201coverall object and purpose of the treaty\u00a0as\u00a0seen from the differing perspectives of the many countries that took part in negotiations.\u201d[80]<\/a>\u00a0<\/p>

With regard to a unified system of transnational litigation procedures the A\u00e9rospatiale<\/em> decision was a setback.\u00a0 By circumventing the Hague Evidence Convention as the standard way of obtaining evidence abroad, FRCP could still be applied by U.S. courts.\u00a0 The Convention is therefore relegated to a mere alternative with very little practical application between Germany and the U.S.<\/p>

This description has by no means been an exhaustive enumeration of all differences between German and U.S. domestic discovery rules.\u00a0 However, this brief overview already makes it clear that significant differences exist that have the potential for serious conflict in transnational litigation.<\/p>

III. Reasons for Germany\u2019s reluctance to accept U.S. style discovery<\/h1>

Extensive pre-trial discovery procedures are uniquely American and appear foreign to the rest of the world.[81]<\/a>\u00a0 Most civil law jurists regard U.S.-style discovery as detrimental to the fair and speedy resolution of a dispute.\u00a0 It is seen as much too intrusive and placing too strong of a burden on parties to comply with the requests or face sanctions. \u00a0The grounds for German concerns regarding U.S.-style discovery can be categorized in three groups; A) fear of extensive discovery being misused for purposes of industrial espionage, B) exaggerated media reports painting the picture of a dysfunctional U.S. justice system, and C) incompatibility with current policies regarding companies internal communications.<\/p>

A. Fears of industrial espionage<\/h2>

A case that received particular attention in Germany was the Volkswagen<\/em> case.[82]<\/a>\u00a0 The case was partially responsible for the German fear of the encroachment by U.S. litigants into domains reserved for German sovereignty.<\/p>

In the Volkswagen<\/em> case the U.S. plaintiffs alleged defective design and manufacture of a 1966 Volkswagen vehicle.[83]<\/a>\u00a0 They filed a personal injury action against Volkswagen in the Sacramento Superior Court.[84]<\/a>\u00a0 To substantiate their claim, the plaintiff sought discovery in the form of inspecting and taking pictures of departments with a Volkswagen manufacturing plant.[85]<\/a>\u00a0 The German embassy filed an amicus curie noting that it would violate German sovereignty and international law to grant the discovery request without requiring German approval via letters rogatory.[86]<\/a>\u00a0 While the Court of Appeals ultimately did find that letters rogatory would be the proper mechanism of accomplishing such a discovery request, the possibility of circumventing German courts made a strong impression in Germany. These concerns were probably intensified because the affected area involved possible trade secrets of one of Germany\u2019s most important industries, the automobile industry.[87]<\/a>\u00a0<\/p>

B. Exaggerated media reports<\/h2>

From a German viewpoint, U.S. civil litigation is seen as extremely plaintiff friendly due to broad grants of discovery without particularly specific pleadings.\u00a0 Judgments are often seen as excessive and news of outrageously high punitive damages receive a lot of public attention. \u00a0For example, the McDonald\u2019s<\/em> case was widely publicized in Germany and the U.S. legal system was ridiculed in the domestic and foreign media.[88]<\/a>\u00a0 In that case the Plaintiff, Stella Liebeck, spilled hot McDonald\u2019s coffee and suffered third degree burns.[89]<\/a>\u00a0 She was hospitalized and required a skin graft.\u00a0 It was later determined that the coffee was served at 180 degrees.[90]<\/a>\u00a0 What ultimately lead to the award of punitive damages was the fact that McDonald\u2019s was aware of about 700 prior injuries to customers due to the hot coffee.[91]<\/a>\u00a0 Ms. Liebeck was found to be 20% at fault for holding the coffee between her legs while sitting in her car at the McDonald\u2019s drive-through.[92]<\/a> \u00a0The juries total damage award was later reduced from $2.7 million to $640.000.<\/p>

The headlines, however, paint a very different picture.\u00a0 A German article listing the most bizarre cases in the U.S. leads with a description of the McDonald\u2019s<\/em> case.[93]<\/a>\u00a0 It summarized the facts and concludes that in the U.S. millions can be had for spilled coffee.[94]<\/a>\u00a0 Most articles covering this case have focused on the dollar amount of the jury award.[95]<\/a> \u00a0Bold headlines highlighting the $ 2.7 million punitive damages award is reflective of journalistic norms, placing the most important information first.[96]<\/a>\u00a0 The gory details of the scalding injury that were so prominent at trial are often omitted or understated, to strip the case of any legitimacy and make it sound more bizarre.<\/p>

C. Incompatible record keeping policies for companies internal communications<\/h2>

Another reason is that German businesses that are not familiar with broad discovery requirements do not send internal documents with litigation in mind.[97]<\/a>\u00a0 As a result records can be very candid and can be filled with very damaging details.[98]<\/a>\u00a0 Certainly, many of the larger German corporations have in-house counsel familiar with American discovery requirements and therefore make appropriate changes to their record keeping policies.[99]<\/a>\u00a0 However, several smaller companies may not be able to afford this luxury. \u00a0On the other hand U.S. companies have policies that adequately protect them from broad disclosure requirements during litigation.<\/p>

Taken together these concern have created the impression that U.S. courts are unacceptably expanding their powers by granting extraterritorial discovery on German soil.[100]<\/a>\u00a0 It can be seen as a violation of international law and sovereignty from with the Hague Evidence Convention was supposed to protect Germany.[101]<\/a>\u00a0 However, since the decision in Aerospatiale<\/em> we know that U.S. courts can circumvent the Convention and still apply FRCP when evaluating a request for discovery.[102]<\/a>\u00a0 The practical implications are the German companies are forced to comply with the discovery orders, despite the fact that it would be counter to their own national laws.\u00a0 That is because many German companies have significant assets in the U.S. that through the threat of sanctions motivate German litigants to comply.\u00a0 However, his is not a desirable outcome.\u00a0 While in the short term it may produce the desired results in a particular case, in the long term judicial comity is not advanced by this practice.<\/p>

  1. Why the current framework will not succeed<\/li><\/ol>

    For those reasons mentioned above \u00a7 1782 will not achieve its stated purpose. It is unreasonable to expect Germany to adopt U.S. style discovery procedures.\u00a0 Therefore, one of the purposes of \u00a7 1782 has failed, which was to influence foreign countries into adopting similar methods of discovery, or at least grant U.S. litigants discovery requests from a foreign court.\u00a0 It has been shown to be more akin to wishful thinking than to a realistic expectation, as it has become evident that U.S. style discovery has and will continues to face much opposition abroad.\u00a0<\/p>

    The following dilemma remains. \u00a0In the two scenarios discussed here between the U.S. and Germany, parties are either in a U.S. or German court requesting evidence located in the territory of the other nation.\u00a0 Due to \u00a71782, a German party could potentially obtain the same level of discovery in a German court as in a U.S. court.\u00a0 Conversely, this is not the case for the U.S. party.\u00a0 A U.S. party in a German court would only be able to obtain the limited type of discovery afforded under German law, while remaining subject to U.S. style discovery due to \u00a7 1782.\u00a0 Whether or not the evidence so obtained would ultimately be admissible in the German trial is still subject to German law, but at least the German side would be able to obtain information that the U.S. party cannot.[103]<\/a>\u00a0<\/p>

    Similarly, German parties in U.S. courts, with the help of the German government, have been resisting U.S. style discovery of evidence located in Germany.[104]<\/a>\u00a0 With arguments of German sovereignty and through the passage of the Hague Convention, Germany has attempted to require U.S. litigants to obtain letters rogatory to German courts, who would then only grant discovery requests that met requirements under German civil procedure.[105]<\/a><\/p>

    The central concern remains that \u00a71782 creates an unfair advantage to foreign litigants.\u00a0 In addition the grant of discovery in a U.S. court can be seen as an affront against the German court; hindering international cooperation instead of advancing it.[106]<\/a>\u00a0 The Intel<\/em> court was incorrect when it assumed a foreign country would not necessarily take offense to evidence obtained through \u00a7 1782 even though it would retain the ability to reject introduction of such evidence.[107]<\/a>\u00a0 A party may still receive an unfair advantage by merely being in possession of the information obtained through discovery.[108]<\/a>\u00a0 German courts are also ill equipped to deal with the attempted introduction of large quantities of documents.\u00a0 Since broad discovery is not usual under the national rules, no streamlined procedure has been set up to evaluate such requests.<\/p>

    It should be noted that under the current framework of discretion by the district court judge it is possible to withhold the granting of a discovery request and make it conditional on the party agreeing to make the same level of discovery available to its counterpart.[109]<\/a>\u00a0 However, this does not mean that district courts will always provide for such a condition, and this is precisely why an amendment to \u00a7 1782 is necessary.<\/p>

    IV. Lessons from international commercial arbitration<\/h1>

    \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Having encountered the difficulties described above it should be no surprise that parties involved in international transactions often choose international commercial arbitration over litigation.[110]<\/a>\u00a0 Arbitration provides several procedural advantages over litigation.[111]<\/a>\u00a0 An important distinguishing aspect to court systems is that members of an arbitral tribunal are selected by either the parties or a contractually specified delegate.[112]<\/a>\u00a0 Arbitrators with expertise in the type of dispute are usually selected. With regards to procedure, parties engaged in international commercial arbitration often reach a middle ground on discoverability between common law and civil law through the use of institutional rules.\u00a0 The procedural rules of institutional arbitration often only provide a general framework of the entire proceeding and leave specific evidentiary issues at the discretion of the tribunal.[113]<\/a>\u00a0<\/p>

    The IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules) have gained wide acceptance within the international arbitral community.[114]<\/a> \u00a0These rules can be especially helpful where the parties come from different legal cultures.[115]<\/a>\u00a0 Even when parties have not expressly agreed to their application, it is possible that arbitral tribunals may reference these rules as gap filling provisions.[116]<\/a><\/p>

    The working group that created the IBA Rules spent a significant amount of time on the question of whether or not a party should be able to request production of documents in possession of another party.[117]<\/a> \u00a0\u201cThe vigour with which this issue was debated demonstrated that the question of document production was the key area in which practitioners from common law countries and civil law countries differ. The debate produced a balanced approach that became a central aspect of the IBA Rules [\u2026] and has become widely accepted by both common law and civil law practitioners.\u201d[118]<\/a><\/p>

    The IBA Rules, therefore, have produced a workable compromise between the common law and civil law approaches towards the taking of evidence. Article 3.3 of the IBA Rules provides the procedure for requesting the production of a document.[119]<\/a>\u00a0 For the request to be granted, a party must provide:<\/p>

    \u201c[1] a description of each requested Document sufficient to identify it, or a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner; [2] a statement as to how the Documents requested are relevant to the case and material to its outcome; and [3] a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and [4] a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party.\u201d[120]<\/a><\/p>

    The commentary to the IBA Rules clarifies that the identification of documents is the result of a compromise between the common law and civil law systems.\u00a0 A concession from common law is to specifically identify documents whereas the civil law concedes to allow parties to request documents by category.[121]<\/a> \u00a0\u201cThe Working Party and the Subcommittee did not want to open the door to \u2018fishing expeditions\u2019. However, it was understood that some documents would be relevant and material and properly produced to the other side, but that they may not be capable of specific identification. Indeed, all members of the Working Party and of the Subcommittee, from common law and civil law countries alike, recognised that arbitrators would generally accept such requests if they were carefully tailored to produce relevant and material documents.\u201d[122]<\/a><\/p>

    While the courts have not made any such compromises, arbitration has.\u00a0 Surely, this is part of the reason why arbitration has become so popular among transnational litigants.\u00a0 As described above the different approaches with regard to the gathering of evidence is particularly pronounced between common- and civil law countries.<\/p>

    However, international commercial arbitration has its limits since it requires the consent of the parties.[123]<\/a>\u00a0 Therefore arbitration agreements do not fully resolve the difficulties transnational litigants face, because disputes could arise that involve parties not bound by such an agreement.\u00a0 An example of this can be seen in the case Heraeus Kulzer, GmbH v. Bioment, Inc<\/em>.[124]<\/a>\u00a0 Heraeus Kulzer is a German company and Biomet is from the U.S.[125]<\/a>\u00a0 Heraeus Kulzer manufactured bone cement and entered into a contractual relationship with Merck, another German company.\u00a0 Heraeus had to provide confidential information about its bone cement to Merck, so that regulatory requirements would be met.[126]<\/a>\u00a0 Merck being in possession of this information became a concern for Heraeus when Merck entered into a joint venture with Bioment.[127]<\/a>\u00a0 This concern materialized when Bioment began producing bone cement similar to that of Heraeus.[128]<\/a>\u00a0<\/p>

    Under these circumstances Heraeus Kulzer sued Biomet in a German court for theft of trade secrets.[129]<\/a>\u00a0 However, Heraeus sought broad discovery in a U.S. federal district court using \u00a7 1782.[130]<\/a>\u00a0 <\/strong>Using its discretion, the court found that Heraeus could obtain the same amount of discovery in Germany, as it could if it filed the lawsuit in the U.S. district court.[131]<\/a>\u00a0 The District Court reasoned that the German Court still had the opportunity to exclude the fruits of the U.S. discovery obtained, so it could not possibly do any harm.[132]<\/a>\u00a0 While the Court considered the potential for abuse and the lack of reciprocity for Biomet, it did not find that Heraeus made the request for discovery based on such motives.[133]<\/a><\/p>

    Two lessons can be drawn from this case.\u00a0 First, because Heraeus suffered an injury by a third party, no contractual relationship between the two parties existed. \u00a0Therefore, while an arbitration clause is certainly smart lawyering to avoid the procedural difficulties of transnational litigation, it cannot protect companies in situations like this.\u00a0 Arbitration is based on party consent and cannot be a complete substitute for transnational litigation.\u00a0 A need for courts in different countries to effectively collaborate still exists. \u00a0Second, this case highlights the potential for abuse and inequalities with regard to discovery requests under \u00a7 1782.\u00a0 Whereas Heraeus was able to obtain broad U.S. style discovery, Biomet was restricted to narrow German procedures.[134]<\/a>\u00a0 Additionally, it was conceivable that Heraeus could use the discovery requests to harass Biomet by making broad demands, resulting in great expense for Bioment.[135]<\/a>\u00a0 The following section will address the concerns arising from this case and suggest ways to improve upon the existing procedures.<\/p>

    A. Proposed congressional amendment to \u00a7 1782 to include parity requirement<\/h2>

    Parity among litigants is not only a hallmark of due process, but it could even be seen as rising to the level of customary international law.\u00a0 Equal treatment among opposing litigants is a fundamental right that should be expected to exist in any court or tribunal.[136]<\/a>\u00a0 Considering the status quo, this cannot be said to exist when foreign parties take advantage of 1782 discovery without giving reciprocal rights to U.S. litigants.\u00a0<\/p>

    While the Intel<\/em> Court correctly interpreted the statute, it lead to an undesirable result based on the above policy considerations.\u00a0 It would have been improper for the Court to insert a parity requirement into the statute when the language does not lead to such a conclusion.\u00a0 Unlike the article proposes to change the interpretation of \u00a71782. \u00a0A congressional amendment to \u00a71782 to include a parity requirement would be the proper router.\u00a0 The proposed language would add an additional requirement that: reciprocal discovery must be afforded in order for a request for discovery to be granted by a U.S. district court.\u00a0 Without such language the decision to grant or deny a discovery request is too indeterminate and left to the district court\u2019s discretion, which could lead to incongruent results.<\/p>

    Additionally these changes to \u00a71782 should be made in order to further international cooperation between the courts and level the playing field between U.S. and foreign litigants. \u00a0Specifically this would require the court to only grant discovery requests where the same level of discovery will be granted to the U.S. party.<\/p>

    What others have suggested, to require U.S. courts to do a foreign law analysis, was rightly dismissed by the Intel<\/em> case.[137]<\/a> \u00a0It is not a workable solution to require U.S. judges to be so fluent in German law to be able to accurately determine whether a piece of evidence would be admitted in German court.\u00a0 Prior to the Intel<\/em> decision such attempts to impose a discoverability requirement into \u00a71782 have lead to a \u201cbattle-by-affidavit of international legal experts.\u201d[138]<\/a>\u00a0 The drafters of \u00a71782 \u201cdid not want to have a request for cooperation turn into an unduly expensive and time-consuming fight about foreign law. [\u2026] They also realized that, although civil law countries do not have discovery rules similar to those of common law countries, they often do have quite different procedures for discovering information that could not properly be evaluated without a rather broad understanding of the subtleties of the applicable foreign system.\u201d[139]<\/a><\/p>

    B. Proposed Principles and Rules of Transnational Civil Procedure<\/h2>

    The American Law Institute (ALI) and International Institute for the Unification of Private Law (UNIDROIT) engaged in a project called \u201cPrinciples and Rules of Transnational Civil Procedure.\u201d The working group published principles that ultimately evolved into proposed rules of transnational procedure.\u00a0 Their purpose is to serve as a model for individual nations to follow when enacting their own national legislation.\u00a0 The scope of the proposed rules is limited, they still require that \u201c[t]he procedural law of the forum must be applied in matters not addressed in these Rule<\/em>s.\u201d[140]<\/a>\u00a0<\/p>

    This means that the rules are supplementary and specifically address the areas unique to transnational litigation.\u00a0 For matters not covered by the proposed rules, courts will still have to look towards the usual procedural rules.<\/p>

    With regard to the discovery of evidence these principles propose a middle ground between U.S. style discovery and the limited disclosure requirements typical of civil law jurisdictions.[141]<\/a>\u00a0 In addition to the principles, these two institutions drafted procedural rules as a template for national legislation of transnational litigation.\u00a0 If these rules were to be adopted, transnational litigation would become its own separate legal field with distinct procedural rules.\u00a0<\/p>

    The proposed rules for transnational civil procedure have many aspects in common with the IBA Rules used in arbitration.\u00a0 They require concessions from both common and civil law jurisdictions to achieve a workable middle ground.\u00a0 A major concession for civil law jurisdictions would be the requirement to disclose evidence that may be adverse to the party.[142]<\/a>\u00a0 On the common law side, a typical request for \u201cany and all\u201d evidence relating to a certain topic would not be allowed.[143]<\/a>\u00a0 Instead evidence must be reasonably identified under the proposed rules.\u00a0 The exact language of the rules reads as follows:<\/p>

    \u201cUpon timely request of a party, the court should order disclosure of relevant, non-privileged, and reasonably identified evidence in the possession or control of another party or, if necessary and on just terms, of a nonparty. It is not a basis of objection to such disclosure that the evidence may be adverse to the party or person making the disclosure.\u201d[144]<\/a><\/p>

    The commentary of the rules explains the source and reasoning used to arrive at the proposed compromise:<\/p>

    \u201cThe philosophy expressed in Rules 19, 20, 22, and 30 is essentially that of the common-law countries other than the United States. In those countries, the scope of discovery or disclosure is specified and limited, as in Rules 19 and 20. However within those specifications disclosure is generally a matter of right.\u201d[145]<\/a><\/p>

    \u201cDiscovery under prevailing United States procedure, exemplified in the Federal Rules of Civil Procedure, is much broader, including the broad right to seek information that \u2018appears reasonably calculated to lead to the discovery of admissible evidence.\u2019 This broad discovery is often criticized as responsible for the increasing costs of the administration of justice. However, reasonable disclosure and exchange of evidence facilitates discovery of truth.\u201d[146]<\/a><\/p>

    \u201cDiscovery under the civil-law systems is generally much more restricted, or nonexistent. In particular, a much broader immunity is conferred against disclosure of trade-and- business secrets. This Rule should be interpreted as seeking to strike a balance between the restrictive civil-law systems and the broader systems in common-law jurisdictions.\u201d[147]<\/a><\/p>

    \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 These proposed rules have encountered some opposition from both commentators in civil law and common law jurisdictions.[148]<\/a>\u00a0 Criticism is often directed to the compromise made with regard to discovery procedures.[149]<\/a>\u00a0 From the civil law side it is argued that the burden and expense resulting from the discovery procedures is too great; that it is in essence too similar to U.S. civil procedure.[150]<\/a> \u00a0On the other hand it is said that the lack of broad discovery in civil law jurisdictions impedes the access to justice and the truth finding process.[151]<\/a> \u00a0These two systems are simply diametrically opposed and the compromise in these rules presents an \u201cunacceptable social expense.\u201d[152]<\/a><\/p>

    However, inaction also has its costs.\u00a0 The status quo leaves the difficulties surrounding transnational discovery unresolved and would lead undoubtedly to greater confusion, delay and increased cost during litigation.\u00a0 A compromise is simply necessary to bridge the gap between the two legal systems. The proposed rules \u201cmediate the binary opposition between broad discovery and no discovery at all.\u201d[153]<\/a><\/p>

    The criticism directed toward these proposed transnational rules can be seen as a typical symptom of any negotiating process.\u00a0 Parties expected to make concessions tend to magnify their own and undervalue those made by the opposite side.[154]<\/a> \u00a0U.S. parties do not see a reason why German parties should receive special treatment in U.S. proceedings and vice versa.[155]<\/a>\u00a0 Additionally, misunderstandings about both, the civil and common law systems, may be a contributing factor.[156]<\/a><\/p>

    In many law firms transnational\u00a0litigation is a distinct area of practice that is staffed with specialists of different legal systems.[157]<\/a>\u00a0 Law schools have developed curricula that include new courses in with an international and comparative perspective.[158]<\/a> \u00a0Some have even said that transnational litigation has entered a golden era.[159]<\/a> \u00a0<\/p>

    Although there is general agreement that transnational litigation is on the rise and is likely going to continue to experience growth in the coming year, it is not the first time that U.S. courts have encountered change.[160]<\/a>\u00a0 Over the past 200 years the U.S. legal system has encountered economic, political, and social change yet the rules of\u00a0civil\u00a0procedure applied in\u00a0transnational\u00a0cases always closely resembled those applied in domestic cases.[161]<\/a><\/p>

    It remains to be seen whether this golden era will produce dramatic change through the implication of a distinct set of rules reserved for transnational cases, or whether a slow and systematic adaptation will take place as it has in the past.[162]<\/a> \u00a0Either way change must take place; if it does not, transnational litigation will only become more time consuming and expensive as the caseload continues to increase.<\/p>

    \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/sub>Conclusion<\/h1>

    \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The civil- and common law systems of Germany and the U.S. have developed very different procedures for the discovery of evidence that under the current transnational framework are incompatible. \u00a0Germany has restrictive rules for obtaining evidence in order to protect parties from undue burden and being forced to reveal trade secrets.\u00a0 The U.S. favors broad discovery practices for full disclosure of facts to determine the truth and encourage settlements.\u00a0 Nonetheless, proceedings in international commercial arbitration have demonstrated that it is possible to successfully merge common and civil law principles and produce a compromise that is generally acceptable to both parties.\u00a0<\/p>

    The IBA Rules are the result of such a compromise and have enjoyed broad application in arbitration proceedings.\u00a0 However, arbitration alone cannot completely replace transnational litigation.\u00a0 While arbitration agreements are popular among those involved in international trade, certain disputes will still require dispute resolution through the court system.\u00a0 This is where the proposed rules for transnational litigation provide a promising solution that would help to make this area of law function more effectively and increase equality among the parties.<\/p>

    \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The expectations set by the passing of \u00a71782 hoping that other nations would adopt discovery procedures similar to those in the United States were unreasonable and, as we have now seen, have failed to materialize.\u00a0 Instead \u00a71782 has caused American litigants to be placed at an unfair disadvantage as the burdens of extensive discovery can be extracted from within the U.S. without any such reciprocal obligation.\u00a0 Therefore \u00a7 1782 needs to be amended to account for this imbalance and to only allow the type of discovery that both parties would be able to obtain.<\/p>

    <\/a><\/p>

    [1] Gary Born, International Civil Litigation in United States Courts 849 (1996) citing Letter from Mr. von Bulow to George Bancroft (June 24, 1874), in Papers Relating to the Foreign Relations of the United States 446 (1874).<\/p>

    [2]<\/a> Id.<\/em><\/p>

    [3]<\/a> Id.<\/em><\/p>

    [4]<\/a> Id.<\/em><\/p>

    [5]<\/a> Samuel P. Baumgartner, Is Transnational Litigation Different?<\/em>, 25 Univ. Pa. J. Int. Econ. Law 1297 (2004).<\/p>

    [6]<\/a> Id.<\/em> at 1380.<\/p>

    [7]<\/a> Joint American Law Institute \/ UNIDROIT\u00a0Working Group on Principles and Rules of Transnational Civil Procedure. Draft Rules Of TRANSNATIONAL\u00a0CIVIL\u00a0PROCEDURE WITH\u00a0COMMENTS, available at http:\/\/www.unidroit.org\/english\/documents\/2004\/study76\/s-76-12-e.pdf.<\/p>

    [8]<\/a> Fed. R. Civ. P. 1 (\u201cThese [\u2026] rules shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.\u201d);\u00a0 80 Petra Schaff, Schriften zum Prozessrecht: Discovery und andere Mittel der Sachverhaltsaufklarung im englischen Pre-Trial-Verfahren im Vergleich zum deutschen Zivilprozess, 129 (1983).<\/p>

    [9]<\/a> 2 John Fellas & Alex Patchen, Transnational Litigation: A Practitioner\u2019s Guide \u00a7 13:49 (2013) [hereinafter Fellas & Patchen<\/em>].<\/p>

    [10]<\/a> Id.<\/em><\/p>

    [11]<\/a> Schaaff, supra<\/em> note 8, at 128.<\/p>

    [12]<\/a> Zivilprozessordnung [ZPO] [Code of Civil Procedure], Dec. 5, 2005, Bundesgesetzblatt [BGBl.] 3145, as amended, \u00a7 425 (Ger.).<\/p>

    [13]<\/a> Peter Bert, Pre-Trial Discovery under the Hague Evidence Convention: Is Germany\u2019s Position Softening? (2013) available at<\/em> http:\/\/lettersblogatory.com\/2013\/08\/26\/pre-trial-discovery-under-the-hague-evidence-convention-is-germanys-position-softening\/.<\/p>

    [14]<\/a> John H. Langbein, The German Advantage in Civil Procedure<\/em>, 52 U. Chi. L. Rev. 823, 826-27 (1985).<\/p>

    [15]<\/a> Bavaria is one of Germany\u2019s sixteen states with a population of 12.5 million.<\/p>

    [16]<\/a> James R. Maxeiner et al., Failures of American Civil Justice 126 (2011).<\/p>

    [17]<\/a> Id.<\/em><\/p>

    [18]<\/a> Jan W. Bolt & Joseph K. Wheatley, Private Rules for International Discovery in U.S. District Court: The U.S. \u2013German Example, 11 UCLA J. Int\u2019l & Foreign Aff. 1, 3 (2006)<\/p>

    [19]<\/a> Id.<\/em><\/p>

    [20]<\/a> Baumgartner, supra<\/em> note 5.<\/p>

    [21]<\/a> Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Jul. 27, 1970, 23 U.S.T. 2555 [hereinafter<\/em> Evidence Convention].<\/p>

    [22]<\/a> Id<\/em>.<\/p>

    [23]<\/a> Richard H. Kreindler, Transnational Litigation: A Basic Primer 132 (1998).<\/p>

    [24]<\/a> Id.<\/em> at 66.<\/p>

    [25]<\/a> Evidence Convention at 2555.<\/p>

    [26]<\/a> Id.<\/em><\/p>

    [27]<\/a> Id.<\/em><\/p>

    [28]<\/a> Id.<\/em><\/p>

    [29]<\/a> Gesetz zur Ausf\u00fchrung des Haager \u00dcbereinkommens vom 15. November 1965 \u00fcber die Zustellung gerichtlicher und au\u00dfergerichtlicher Schriftst\u00fccke im Ausland in Zivil- oder Handelssachen und des Haager \u00dcbereinkommens vom 18. M\u00e4rz 1970 \u00fcber die Beweisaufnahme im Ausland in Zivil- oder Handelssachen [Haager \u00dcbereinkommen Ausf\u00fchrungsgesetz] [Haag\u00dcbkAG] [Enactment of Hague Convention], Dec. 22, 1977, BGBl. I at 3105 (Ger.), available at<\/em> http:\/\/www.gesetze-im-internet.de\/bundesrecht\/haag_bkag\/gesamt.pdf.<\/p>

    [30]<\/a> Fellas & Patchen<\/em>, supra<\/em> note 11, at \u00a7 13:50.<\/strong><\/p>

    [31]<\/a> Evidence Convention.<\/p>

    [32]<\/a> Schaaff, supra<\/em> note 8, at 159.<\/p>

    [33]<\/a> Id<\/em>. at 158.<\/p>

    [34]<\/a> Id.<\/em><\/p>

    [35]<\/a> Kreindler, supra<\/em> note 23, at 161.<\/p>

    [36]<\/a> Id.<\/em><\/p>

    [37]<\/a> John H. Langbein et al., History of the Common Law 401 (2009).<\/p>

    [38]<\/a> John H. Langbein, On the Myth of Written Constitutions: The Disappearance of Criminal Jury Trials<\/em>, 15 Harv. J. Law Public Policy 119 (1992).<\/p>

    [39]<\/a> Maxeiner, supra<\/em> note 16, at 126.<\/p>

    [40]<\/a> Id<\/em>. at 128.<\/p>

    [41]<\/a> Maxeiner, supra<\/em> note 16, at 128.<\/p>

    [42]<\/a> Id<\/em>.<\/p>

    [43]<\/a> See supra<\/em> note 2.<\/p>

    [44]<\/a> Fed. R. Civ. P. 26(b)(1).<\/p>

    [45]<\/a> Fed. R. Evid. 401.<\/p>

    [46]<\/a> Fed. R. Civ. P. 26(a).<\/p>

    [47]<\/a> Born, supra<\/em> note 1, at 845.<\/p>

    [48]<\/a> Id.<\/em><\/p>

    [49]<\/a> Id.<\/em><\/p>

    [50]<\/a> Id.<\/em><\/p>

    [51]<\/a> Born, supra<\/em> note 1, at 845.<\/p>

    [52]<\/a> Id.<\/em><\/p>

    [53]<\/a> Id.<\/em> at 18.<\/p>

    [54]<\/a> Fed. R. Civ. P. 68(d).<\/p>

    [55]<\/a> 28 U.S.C. \u00a7 1782 (2013).<\/p>

    [56]<\/a> Harold G. Maier, Extraterritorial Discovery: Cooperation, Coercion and the Hague Evidence Convention<\/em>, 19 Vand. J. Transnat’l L. 239, 242 (1986).<\/p>

    [57]<\/a> Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).\u00a0<\/p>

    [58]<\/a> Luis A. Perez & Frank Cruz-Alvarez, 28 U.S.C. \u00a7 1782: The Most Powerful Discovery Weapon in the Hands of a Foreign Litigant<\/em>, 5 FIU L. Rev. 177 (2009) (describing 28 U.S.C. \u00a7 1782 as a \u201cforeign litigants most powerful discovery weapon against a U.S. entity in a foreign proceeding.\u201d);\u00a0 The statute was generally expanded as time went on, not only in scope of discovery but also with regard to the definition of the term \u2018foreign proceeding\u2019 which now includes arbitral tribunals. \u00a0For a detailed description regarding the history of 28 U.S.C. \u00a7<\/strong>1782 and its different amendments, see Extra-Statutory Discovery Requirements: Violating the Twin Purposes of 28 U.S.. Section 1782<\/em> 29 Vand. J. Transnat\u2019l L. 117, 121-129 (1996).<\/p>

    [59]<\/a> In re<\/em> Application of Gianoli, 3 F.4d 54, 58 (2d Cir. 1993), cert. denied<\/em>, 114 S. Ct. 443 (1993) (citing In re<\/em> Application of Malev Hungarian Airlines, 964 F.2d 97, 100 (2d Cir. 1992), cert. denied<\/em>, 113 S. Ct. 179 (1992)).<\/p>

    [60]<\/a> 28 U.S.C. \u00a7 1782 (2013).<\/p>

    [61]<\/a> Kreindler, supra<\/em> note 23, at 66.<\/p>

    [62]<\/a> Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256-57 (2004).<\/p>

    [63]<\/a> Id.<\/em> at 245.<\/p>

    [64]<\/a> Id. <\/em><\/p>

    [65]<\/a> Id.<\/em> at 267.<\/p>

    [66]<\/a> Marat A. Massen, Discovery for Foreign Proceedings After Intel v. Advanced Micro Devices: A Critical Analysis of 28 U.S.C. \u00a7 1782 Jurisprudence<\/em>, 83 S. Cal L. Rev. 875, 899 (2010).<\/p>

    [67]<\/a> Id.<\/em> at 876.<\/p>

    [68]<\/a> Id.<\/em> at 261-262.<\/p>

    [69]<\/a> Massen, supra<\/em> note 66, at 876.<\/p>

    [70]<\/a> Daniel A. Losk, Section 1782 (A) After Intel: Reconciling Policy Considerations and a Proposed Framework to Extend Judicial Assistance to International Arbitral Tribunals,<\/em> 27 Cardozo L. Rev. 1035 (2005).<\/p>

    [71]<\/a> Societe Nationale Industrielle A\u00e9rospatiale v. United States Dist. Court for S. Dist., 482 U.S. 522 (1987).<\/p>

    [72]<\/a> Id.<\/em> at 525.<\/p>

    [73]<\/a> Id.<\/em><\/p>

    [74]<\/a> Id.<\/em> at 525-526.<\/p>

    [75]<\/a> Id.<\/em><\/p>

    [76]<\/a> Id.<\/em> at 529.<\/p>

    [77]<\/a> Id<\/em>. at 538.<\/p>

    [78]<\/a> Paul R. Dubinsky, Is Transnational Litigation a Distinct Field? The Persistence of Exceptionalism in American Procedural Law<\/em>, 44 Stan. J. Int’l L. 301, 318 (2008).<\/p>

    [79]<\/a> Dubinsky, supra<\/em> note 76.<\/p>

    [80]<\/a> Id.<\/em><\/p>

    [81]<\/a> Maxeiner, supra<\/em> note 16.<\/p>

    [82]<\/a> Volkswagen Aktiengesellschaft v. Superior Court, 33 Cal. App. 3d 503 (Cal. Ct. App. 1973).<\/p>

    [83]<\/a> Id.<\/em><\/p>

    [84]<\/a> Id.<\/em> at 505<\/p>

    [85]<\/a> Id.<\/em><\/p>

    [86]<\/a> Volkswagen Aktiengesellschaft v. Superior Court, 33 Cal. App. 3d 503, 505 (Cal. Ct. App. 1973).<\/p>

    [87]<\/a> Schaaff, supra<\/em> note 8, at 159.<\/p>

    [88]<\/a> Liebeck v. McDonald’s Rest., P.T.S. Inc., 1995 WL 360309 (N.M. Dist. Ct. 1994);\u00a0 For an extensive study on the media\u2019s treatment of the Liebeck<\/em> case, see<\/em> Michael McCann et. al., Java Jive: Genealogy of a Juridical Icon<\/em>, 56 U. Miami L. Rev. 113, 130-169 (2001).<\/p>

    [89]<\/a> Liebeck v. McDonald’s Rest., P.T.S. Inc., 1995 WL 360309 (N.M. Dist. Ct. 1994).<\/p>

    [90]<\/a> Id.<\/em><\/p>

    [91]<\/a> Id.<\/em><\/p>

    [92]<\/a> Id.<\/em><\/p>

    [93]<\/a> Miriam Walker, Die Skurrilsten Klagen in Amerika<\/em>, Web.de, http:\/\/web.de\/magazine\/nachrichten\/panorama\/6964440-skurrilsten-klagen-amerika.html<\/p>

    [94]<\/a> Id.<\/em><\/p>

    [95]<\/a> McCann, supra<\/em> note 88, at 137.<\/p>

    [96]<\/a> Id.<\/em><\/p>

    [97]<\/a> Bolt, supra<\/em> note 18, at 6.<\/p>

    [98]<\/a> Id.<\/em><\/p>

    [99]<\/a> Id.<\/em><\/p>

    [100]<\/a> Peter Schlosser, Der Justizkonflikt zwischen den USA und Europa 15 (1985.)<\/p>

    [101]<\/a> Schlosser, supra <\/em>note 100.<\/p>

    [102]<\/a> Societe Nationale Industrielle A\u00e9rospatiale v. United States Dist. Court for S. Dist., 482 U.S. 522 (1987).<\/p>

    [103]<\/a> Maassen, supra<\/em> note 66, at 882.<\/p>

    [104]<\/a> Volkswagen Aktiengesellschaft v. Superior Court, 33 Cal. App. 3d 503 (Cal. Ct. App. 1973).<\/p>

    [105]<\/a> Id.<\/em><\/p>

    [106]<\/a> Maasen, supra<\/em> note 66, at 882.<\/p>

    [107]<\/a> Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 261-62 (2004).<\/p>

    [108]<\/a> Maasen, supra<\/em> note 66, at 882.<\/p>

    [109]<\/a> Hans Smit, American Assistance to Litigation in Foreign and International Tribunals: Section 1782 of Title 28 of the U.S.C. Revisited<\/em>, 25 Syracuse J. Int\u2019l L. & Com. 1, 13 (1998).<\/p>

    [110]<\/a> Losk, supra<\/em> note 68, at 1046.<\/p>

    [111]<\/a> Born, supra<\/em>\u00a0 note 1, at 221.<\/p>

    [112]<\/a> Id.<\/em><\/p>

    [113]<\/a> Tobias Zuberb\u00fchler et. al., IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration, 4 (2012). (For example the ICC procedural rules state in Art. 25 \u201cThe arbitral tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means.\u201d and similarly ICSID Arbitration Rule 22 (3) states broadly that \u201cThe Commission, in order to obtain information that might enable it to discharge its functions, may at any stage of the proceeding:<\/p>

    (a) request from either party oral explanations, documents and other information;<\/p>

    (b) request evidence from other persons; and<\/p>

    (c) with the consent of the party concerned, visit any place connected with the dispute or conduct inquiries there, provided that the parties may participate in any such visits and inquiries.\u201d)<\/p>

    [114]<\/a> IBA Rules on the Taking of Evidence in International Arbitration, Foreword (2010), available at<\/em> http:\/\/www.ibanet.org\/Publications\/publications_IBA_guides_and_free_materials.aspx#takingevidence [hereinafter<\/em> IBA Rules].<\/p>

    [115]<\/a> Id.<\/em><\/p>

    [116]<\/a> Zuberb\u00fchler, supra<\/em> note 115 at 4.<\/p>

    [117]<\/a> Commentary on the IBA Rules on the Taking of Evidence in International Arbitration (2010), available at<\/em> http:\/\/www.ibanet.org\/Publications\/publications_IBA_guides_and_free_materials.aspx#takingevidence [hereinafter<\/em> IBA Rules].<\/p>

    [118]<\/a> Id.<\/em><\/p>

    [119]<\/a> IBA Rules at Art. 3.3.<\/p>

    [120]<\/a> IBA Rules at Art. 3.3.<\/p>

    [121]<\/a> Commentary on the IBA Rules on the Taking of Evidence in International Arbitration (2010), available at<\/em> http:\/\/www.ibanet.org\/Publications\/publications_IBA_guides_and_free_materials.aspx#takingevidence [hereinafter<\/em> IBA Rules].<\/p>

    [122]<\/a> Commentary on the IBA Rules on the Taking of Evidence in International Arbitration (2010), available at<\/em> http:\/\/www.ibanet.org\/Publications\/publications_IBA_guides_and_free_materials.aspx#takingevidence [hereinafter<\/em> IBA Rules].<\/p>

    [123]<\/a> Born, supra<\/em> note 1, at 218.<\/p>

    [124]<\/a> Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591 (7th Cir. 2011).<\/p>

    [125]<\/a> Id.<\/em><\/p>

    [126]<\/a> Id.<\/em><\/p>

    [127]<\/a> Id.<\/em><\/p>

    [128]<\/a> Id.<\/em><\/p>

    [129]<\/a> Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591 (7th Cir. 2011).<\/p>

    [130]<\/a> Id.<\/em><\/p>

    [131]<\/a> Id.<\/em><\/p>

    [132]<\/a> Id.<\/em><\/p>

    [133]<\/a> Id.<\/em><\/p>

    [134]<\/a> Id.<\/em><\/p>

    [135]<\/a> Id. at 595.<\/em><\/p>

    [136]<\/a> U.S. Const. amend. VI;\u00a0 European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6, Sept. 3 1953, 213 UNTS 221.<\/p>

    [137]<\/a> Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 261 (2004).<\/p>

    [138]<\/a> Vand. J. Transnat’l L., Note, Extra-Statutory Discovery Requirements: Violating the Twin Purposes of 28 U.S.C. Section 1782, 29 Vand. J. Transnat\u2019l L. 117, 151 (1996), citing Euromepa, S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1099 (2d Cir. 1995).<\/p>

    [139]<\/a> Hans Smit, Recent Developments in International Litigation<\/em>, 35 S. Tex. L. J. 215, 235 (1994).<\/p>

    [140]<\/a> G. C. Hazard Jr. et. al., International Institute for the Unification of Private Law (UNIDROIT) & American Law Institute (ALI), Draft Rules of Transnational Civil Procedure with Comments (2004) available at<\/em> http:\/\/www.unidroit.org\/english\/documents\/2004\/study76\/s-76-12-e.pdf [hereinafter <\/em>Draft Rules].<\/p>

    [141]<\/a> G. C. Hazard Jr. et. al., International Institute for the Unification of Private Law (UNIDROIT) & American Law Institute (ALI), Draft Principles of Transnational Civil Procedure with Comments (2004) available at<\/em> http:\/\/www.unidroit.org\/english\/principles\/civilprocedure\/ali-unidroitprinciples-e.pdf.<\/p>

    [142]<\/a> Draft Rules at \u00a7 20.<\/p>

    [143]<\/a> Id.<\/em><\/p>

    [144]<\/a> Id.<\/em><\/p>

    [145]<\/a> Draft Rules at C20-3.<\/p>

    [146]<\/a> Id.<\/em> at C20-4.<\/p>

    [147]<\/a> Id. <\/em>at C20-5.<\/p>

    [148]<\/a> Antonio Gidi et. al., Notes on Criticizing the Proposed ALI \/ UNIDROIT Principles and Rules of Transnational Civil Procedure<\/em>, 6 Uniform L. Rev. <\/em>819, 821 (2007) available at<\/em> http:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=1016886.<\/p>

    [149]<\/a> Gidi, supr<\/em>a note 148.<\/p>

    [150]<\/a> Id.<\/em><\/p>

    [151]<\/a> Id.<\/em><\/p>

    [152]<\/a> Id.<\/em><\/p>

    [153]<\/a> Id.<\/em><\/p>

    [154]<\/a> Id. <\/em>at 824.<\/p>

    [155]<\/a> Bolt, supra<\/em> note 18, at 3.<\/p>

    [156]<\/a> Id.<\/em><\/p>

    [157]<\/a> Dubinsky, supra<\/em> note 76, at 301.<\/p>

    [158]<\/a> Dubinsky, supra<\/em> note 76, at 301.<\/p>

    [159]<\/a> Id.<\/em><\/p>

    [160]<\/a> Id.<\/em> at 304.<\/p>

    [161]<\/a> Id.<\/em> at 305.<\/p>

    [162]<\/a> Id.<\/em> at 356.<\/p>

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