District Court Orders French Standards-Setting Organization to Comply with U.S. Discovery Requests


A federal district judge has denied a motion for a protective order filed by the European Telecommunications Standards Institute (the “ETSI”) to prevent jurisdictional discovery under the Federal Rules of Civil Procedure in favor of securing such discovery through the Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters, 28 U.S.C. § 1781 (the “Hague Convention”).  In Trueposition, Inc. v. LM Ericsson Tel. Co., 2012 WL 707012, at *4 (E.D. Pa. Mar. 6, 2012), Judge Robert F. Kelly rejected ETSI’s argument that a French blocking statute (French Penal Code Law No. 80-538) was “dispositive of whether the Hague Convention should be utilized in this case.”  Instead, applying comity principles set forth in Societe Nationale Industielle Aerospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522, 543-44 & n.28 (1987) and its progeny, the Court concluded, among other things, that the strong national interest presented in the case favored U.S. discovery and that blocking statutes do not deprive U.S. courts of the power to order discovery.

ETSI is a not-for-profit standards-setting organization located in France and comprised of more than 700 member companies from 62 countries, including countries outside of Europe.  Plaintiff, Trueposition, Inc., develops and markets high-accuracy location products that operate over cellular telecommunications networks.  Trueposition, Inc., 2012 WL 707012, at *1.  In its complaint, Trueposition asserted claims under the Sherman Antitrust Act, alleging, among other things, that a handful of major players in the international telecommunications market conspired to exclude Trueposition’s positioning technology.  See id.  In response to ETSI’s motion to dismiss the complaint, the Court ordered “limited jurisdictional discovery . . . in order to determine whether personal jurisdiction exists over ETSI.”  Id.

ETSI argued that, in light of the blocking statute, it would “face[] potential criminal liability under French law if it [were to] respond[] to discovery requests that do not comply with the Hague Convention.”  Id. at *3.  ETSI also argued that “a proper balancing of French and United States interests pursuant to the comity analysis in Aerospatiale shows that due respect should be given to France’s sovereign interest in ensuring that discovery in France is conducted in compliance with the Hague Evidence Convention.”  Id. at *4.  Trueposition, by contrast, argued both that the blocking statute did not mandate that jurisdictional discovery be governed by the Hague Convention and that the comity factors overwhelmingly supported discovery pursuant to the Federal Rules of Civil Procedure.  See id.

Observing that “[t]he discovery requests [propounded by Trueposition] are specific and adequately tailored to the jurisdictional issues at hand,” Judge Kelly explained that the Federal Rules are the normal methods for litigation involving foreign nationals and that “the procedures required pursuant to the Hague Evidence Convention are much more likely to be time-consuming that the procedures under the Federal Rules.  Id. at *5, citing, In re Automotive Refinishing Paint, 358 F.3d 288, 300 (3d Cir. 2004). 

After weighing the comity factors – as part of which the Court noted that ETSI had failed to adequately substantiate its claim that it faced any real and present threat under the blocking statute – the Court held that:  “The strong national interest of the United States in enforcing the policies of free market competition that underlie the Sherman Act, especially in an antitrust case involving the international telecommunications market, is significant in comparison to the weak national interest of France in prohibiting disclosure of information regarding jurisdictional contacts of a French entity with worldwide membership and protecting its citizens from burdensome discovery in foreign litigation.  Likewise, the United States has a strong interest in fully and fairly adjudicating Sherman Act suits before the federal judiciary in an efficient and timely fashion.  The French sovereign interest of managing access to information within its borders, as well as attempting to protect its citizens from discovery in foreign litigation, pales in comparison to the interests at stake for the United Sates."

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Having recently left a large law firm environment, the founder and principal member of Aldous pllc, Kenneth E. Aldous, is an experienced lawyer qualified to practice in both the U.S. and UK. Mr. Aldous has represented a broad range of diverse interests in complex litigation before various federal and state courts, as well as in domestic and international arbitration.

Prior to founding Aldous pllc, Mr. Aldous worked for twelve years as an associate in the Litigation & Dispute Resolution Department of Proskauer Rose LLP, focusing his general litigation practice on international, multi-jurisdictional and cross-border dispute resolution. He also gained considerable experience working on secondment as the Head of Litigation for BT Americas Inc. (a subsidiary of British Telecommunications plc) and as litigation counsel for NYSE Euronext.

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