In Re Letter Rogatory From First Court of First Instance in Civil Matters, Caracas, Venezuela , 42 F.3d 308 ( 1995 )

United States Court of Appeals,
Fifth Circuit.
No. 93-9149.
In re LETTER ROGATORY FROM the FIRST COURT OF FIRST INSTANCE IN
CIVIL MATTERS, CARACAS, VENEZUELA, in the Matter of Electronic Data
Systems Corporation.
Electronic Data Systems, Movant-Appellant.
Jan. 13, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before POLITZ, Chief Judge, GOLDBERG and DUHÉ, Circuit Judges.
GOLDBERG, Circuit Judge:
This appeal concerns the validity of an order appointing a
commissioner to provide international judicial assistance pursuant
to a letter rogatory issued by a Venezuelan court. Appellant
Electronic Data Systems Corporation ("EDS") asserts that the
information requested by the letter rogatory is not discoverable
under Venezuelan law, and thus the letter rogatory should not be
honored by the United States. Also, EDS argues that the letter
rogatory denies it due process because the letter rogatory does not
conform to certain statutory requirements and fails to give notice
of what evidence is sought. We disagree on both counts and affirm.
I
A subsidiary of EDS, Electronic Data Systems de Venezuela,
C.A., is involved in a labor dispute in Venezuela with Antonio
Papalardo, a Venezuelan national. As part of this litigation, the
First Court of First Instance in Civil Matters in Caracas,
Venezuela issued a letter rogatory requesting judicial assistance
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in verifying certain documents. The pertinent portion of the
letter rogatory is as follows:
As per writ dated October 1, 1991, this Court agreed to issue
a Letter Rogatory to any Judge or other offier [sic.] who
shall be able to testify, with jurisdiction in the city of
Dallas, Texas ... to help us in the practice of the following
formalities:
First: The defendant requested the following in Chapter V of
his writ of Calling of Proof: "We respectfully request the
Court to return to us, with a prior certification on file, the
documents marked letters "B", "D", "E" and "F", respectively,
in order to verify, through an expert testimony or any other
suitable means which may be necessary, the authenticity of the
above mentioned documents, whether before the immigration
authorities of the city of Dallas, Texas, United States of
America, or at the offices of Electronic Data Systems
Corporation in the same city ...
The Venezuelan court transmitted the letter rogatory to the
United States State Department, which forwarded the matter to the
Office of Foreign Litigation in the Civil Division of the
Department of Justice. The Department of Justice referred the
matter to the United States Attorney's office for the Northern
District of Texas, since the subjects of the letter rogatory were
located in that jurisdiction.
The United States Attorney's Office petitioned the district
court for the appointment of a commissioner to administer the
letter rogatory. This petition was granted and Assistant United
States Attorney Rebecca Gregory was appointed commissioner.
Gregory issued three subpoenas to three specific employees of EDS,
and one subpoena issued to the "Custodian of Records for EDS." EDS
filed a motion to modify or, alternatively quash, the subpoenas, on
the grounds that the letter rogatory sought information that was
not discoverable under Venezuelan law, and that the letter rogatory
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failed to meet certain due process requirements.
EDS's motion was referred to a magistrate judge, who
determined that no discoverability determination was necessary, and
that EDS's due process arguments were without merit. EDS appealed
the magistrate judge's order to the district court. The district
court affirmed the order dismissing EDS's motion to modify the
subpoena.
II
EDS argues that before a letter rogatory is honored, a
determination should be made as to whether the information
requested would be discoverable under Venezuelan law. EDS
maintains that if such an analysis had been undertaken, the lower
court would have held that the letter rogatory sought information
that was not discoverable under Venezuelan law, and was therefore
not enforceable. EDS also argues that the letter rogatory violates
its due process rights by failing to follow statutory procedures
and by not providing adequate notice of the evidence requested.
Each argument will be addressed in turn.
A. Is A Discoverability Determination Required Of A Letter Rogatory
Issued By A Foreign Court?
Letters rogatory are governed by 28 U.S.C. § 1782, which was
last amended in 1964. In amending § 1782, Congress took several
steps to broaden international judicial cooperation. For instance,
Congress expanded the class of litigation eligible for relief under
§ 1782 by replacing the word "court" with the word "tribunal."
Congress also extended § 1782 to private litigants whereas that law
had previously provided relief only to foreign courts. Finally,
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Congress abrogated the requirement that the foreign litigation
actually be pending before relief could be had under § 1782. In re
Application of Aldunate, 3 F.3d 54, 57 (2nd Cir.), cert. denied, --
- U.S. ----, 114 S. Ct. 443, 126 L. Ed. 2d 376 (1993).
The clear purpose of these amendments was to facilitate
American cooperation in foreign litigation matters. However, one
does not have to delve very deeply into the subtext of § 1782 to
discern that Congress was also motivated by an expectation of
reciprocity in enacting the law. See, S.Rep. No. 1580, 88th Cong.,
2d Sess. 1, reprinted in 1964 U.S.Code Cong. & Admin.News 3782.
There is no discoverability requirement in the text of §
1782, and there is nothing in the law requiring or suggesting that
American courts should examine the information requested by the
letter rogatory to determine whether that information comports with
the discovery rules of the requesting nation. However, courts in
the United States have routinely undertaken a discoverability
determination when the request for information comes from a private
litigant. The reason for this is to avoid assisting a foreign
litigant who desires to circumvent the forum nation's discovery
rules by diverting a discovery request to an American court. The
case law in this area is very clear. In re Application of Asta
Medica, S.A., 981 F.2d 1, 7 (1st Cir.1992); John Deere Ltd. v.
Sperry Corp., 754 F.2d 132, 136 (3rd Cir.1985); In re Request for
Assistance from Ministry of Legal Affairs, 848 F.2d 1151, 1156
(11th Cir.1988), cert. denied, 488 U.S. 1005, 109 S. Ct. 784, 102
L. Ed. 2d 776 (1989); In re Letter of Request from Crown Prosecution
4
Service, 870 F.2d 686, 693 n. 10 (D.C.Cir.1989).
There is less clarity, though, in what, if any, scrutiny a
request for information from a foreign court should receive. In
fact, there are no cases directly on point in this matter.
However, the language and purposes of § 1782, as well as principles
of comity and international relations, indicate that no such
discoverability determination is required.
The reason for reviewing a private litigant's request for
information is out of a fear of offending the forum nation by
furthering a scheme to obviate that nation's discovery rules. That
reason is, by necessity, not present in the case where a foreign
court is making a request for information, because the foreign
court is, presumably, the arbiter of what is discoverable under its
procedural rules. For an American court to double-check the
foreign court's request to determine whether it is proper under the
foreign nation's rules would be exactly the kind of slight that §
1782 seeks to avoid.
In amending § 1782 Congress sought to facilitate the process
of litigation involving multi-national parties, and one of the
benefits this law seeks to derive is that foreign nations will
return the courtesy by facilitating requests for information from
the United States. The position urged by EDS would invite foreign
jurisdictions to delay requests for information from American
courts to determine whether the requests conform to the Federal
Rules of Civil Procedure. Because examining a request for
information from a foreign court for its discoverability is both
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unnecessary and would thwart efforts to foster international
cooperation, we do not require such an examination.
B. Does The Letter Rogatory Violate EDS's Due Process Rights?
EDS argues that the letter rogatory fails to meet the
constitutional requirements of due process. Specifically, EDS
argues that: (1) the letter rogatory does not conform with the
statutory requirements for such instruments; (2) is impermissibly
vague; and (3) fails to adequately identify the individuals
sought. We address these claims briefly since they are without
merit.
The State Department has issued guidelines for the formulation
of letters rogatory. 22 C.F.R. 92.67(b). EDS argues that the
letter rogatory is invalid because it does not meet the
requirements of the State Department regulation. Specifically, EDS
complains that the letter rogatory does not contain written
interrogatories as suggested in the regulations. However, by its
very language, the regulation that EDS relies on is not compulsory
and does not mandate any particular form for letters rogatory. The
first sentence of the subsection EDS refers to states that a
"letter rogatory customarily " has certain features and requests
certain types of information. Id. (emphasis provided). The
regulation's use of the word "customarily" negates the inference
suggested by EDS that letters rogatory must conform to the
requirements of the State Department's administrative rules.
Next, EDS argues that the letter rogatory was impermissibly
vague in its request for information, and that this vagueness
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denied EDS of notice of what evidence was being sought. EDS claims
that the letter rogatory's request that an expert witness be used
to verify the documents in question is vague since the testimony of
EDS employees would be lay testimony on the subject of the veracity
of the documents. This objection is baseless, since immediately
after mentioning the use of an expert witness, the letter rogatory
goes on to provide an alternative that "any other suitable means
necessary" may be used to authenticate the documents. The usual
and customary methods of authentication may be employed, and there
is no need for a straight-jacket to be placed on the methods of
authenticating documents. EDS's attempt to find ambiguity in a
simple request to authenticate documents is not persuasive.
Finally, EDS asserts that the subpoena issued to the
"Custodian of Records for EDS" fails to adequately identify the
individual to be examined. Although it may be true, as EDS claims,
that every employee of EDS is a custodian of some documents, such
subterfuge will not jeopardize the efficacy of the letter rogatory.
Testimony, or the production of documents required by a letter
rogatory, will be taken in accordance with the Federal Rules of
Civil Procedure. 28 U.S.C. § 1782. Federal Rule of Civil
Procedure 30(b)(6) provides that EDS may designate company
officials to testify as to the authenticity of the documents in
question. Since EDS's designation of a representative who may
authenticate documents is provided for in the Federal Rules of
Civil Procedure, there is no basis for arguing that the letter
rogatory failed to meet due process requirements.
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For these reasons, we find that no discoverability
determination under the requesting nation's laws is necessary
before honoring a letter rogatory, and that the letter rogatory in
question here raises no due process concerns. The judgment of the
district court is AFFIRMED.
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