2010 DRI Defending Claims of Foreign Litigants - Practice Guide.pdf

Defending Claims of Foreign Litigants

Matthew K. Ashby

McKenna Long & Aldridge LLP

300 South Grand Ave., 14th Floor Los Angeles, California 90071 (213) 243-6132 (213) 243-6330 [fax] [email protected]

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mailto:[email protected]

Matthew K. Ashby is a partner in McKenna Long & Aldridge’s Los Angeles office where he concentrates his practice in civil litigation specializing in products liability and toxic torts. Before becoming an attorney, he was a certified public accountant in the state of California.

Defending Claims of Foreign Litigants v Ashby v 207


I. First Line of Defense: Forum Non Conveniens ...................................................................................... 209

A. Typical Two-Part Test .................................................................................................................... 209

1. Availability of adequate alternative forum ............................................................................. 209

2. The balance of private and public interest factors favors stay or dismissal............................ 209

B. Authority ....................................................................................................................................... 209

1. State ........................................................................................................................................ 209

2. Federal .................................................................................................................................... 209

C. Availability of Adequate Alternative Forum .................................................................................. 209

1. Personal jurisdiction .............................................................................................................. 209

2. Statute of limitations .............................................................................................................. 210

3. Unfavorable foreign law for plaintiff ...................................................................................... 210

4. Favorable foreign law for defendant (reverse forum shopping) ............................................. 211

5. Allegations of biased, unstable, or corrupt foreign courts...................................................... 212

6. Different procedure ................................................................................................................ 212

7. Delay in foreign court ............................................................................................................. 212

D. Balancing of Private and Public Interest Factors ........................................................................... 212

1. Private interest factors ............................................................................................................ 212

2. Public interest factors ............................................................................................................. 213

E. Degree of Deference to Plaintiff ’s Choice of Forum ...................................................................... 213

1. Deference to plaintiff ’s choice ................................................................................................ 213

2. Foreign plaintiff ...................................................................................................................... 214

3. Plaintiff ’s financial means ...................................................................................................... 214

4. Plaintiff ’s safety ...................................................................................................................... 214

F. Conditions on Dismissals .............................................................................................................. 214

1. Examples ................................................................................................................................ 214

G. Timing ........................................................................................................................................... 215

II. Second Line of Defense: Choice of Law ................................................................................................ 215

A. Choice of Law Methodologies ........................................................................................................ 215

1. General rule that federal courts apply conflict of laws rules of the forum ............................. 215

2. Decisions in the United States ................................................................................................ 216

3. The “traditional” test (First Restatement) ............................................................................... 217

4. The “most significant relationship” test (Second Restatement): the majority approach.......... 218

5. The “governmental interest analysis” test ............................................................................... 219

B. Decided Issue by Issue: Depeçage .................................................................................................. 220

`1. Modern approaches .................................................................................................................. 220

2. Multiple defendants ................................................................................................................ 221

C. Timing ........................................................................................................................................... 221

D. Determining and Proving Foreign Law ......................................................................................... 222

Table of Contents

1. Determining foreign law ........................................................................................................ 222

2. Proving foreign law ................................................................................................................. 222

III. Third Line of Defense: Borrowing Statutes ........................................................................................... 226

A. Purpose and Effect ......................................................................................................................... 226

1. Limited scope ......................................................................................................................... 226

2. Foreign countries.................................................................................................................... 226

3. Majority of states .................................................................................................................... 226

B. Example: California ....................................................................................................................... 226

1. Application is mechanical and mandatory. ............................................................................ 227

2. Three steps ............................................................................................................................. 227

IV. Cross-Border Discovery of Foreign Nonparties .................................................................................... 228

A. General Background. ..................................................................................................................... 228

B. Obtaining Evidence ....................................................................................................................... 229

1. The Hague Evidence Convention ........................................................................................... 229

2. Letters rogatory ...................................................................................................................... 231

V. Resources .............................................................................................................................................. 232

A. Internet .......................................................................................................................................... 232

B. Treatise........................................................................................................................................... 232

VI. Appendix............................................................................................................................................... 232

Appendices ......................................................................................................................................................... 233



I. First Line of Defense: Forum Non Conveniens

A. Typical Two-Part Test

1. Availability of adequate alternative forum

2. The balance of private and public interest factors favors stay or dismissal

B. Authority

1. State

Virtually all U.S. states have adopted some variation of the forum non conveniens doctrine. Some

states, such as California, have adopted it by statute. See, e.g., Cal. Code of Civ. Proc. §410.30. Others recognize

the doctrine by common law. See generally McMahon, Forum Non Conveniens Doctrine in State Court as Affected by Availability of Alternative Forum, 57 ALR 4th 973 (1987 & Supp. 2010).

2. Federal

See Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429 (2007), for recent state-

ment of the test in federal courts. A forum non conveniens motion in federal court is governed by federal rules.

State forum non conveniens law is not binding on federal courts in diversity cases. American Dredging Co. v. Miller, 510 U.S. 443, 454 (1994). The doctrine may not apply in actions based on certain federal statutes, such

as the Jones Act, which contains provisions mandating venue in particular federal districts. See 46 U.S.C. App.

§688(a); Loya v. Starwood Hotels & Resorts, 583 F.3d 656, 662 n.5 (9th Cir. 2009).

C. Availability of Adequate Alternative Forum

1. Personal jurisdiction

Under federal rules and most states’ rules, where there are multiple defendants, all defendants (not just

the primary defendants) must be amenable to personal jurisdiction in the alternative forum. Watson v. Merrell Dow Pharma., 769 F.2d 354, 357 (6th Cir. 1985); but see Hansen v. Owens-Corning Fiberglas Corp., 51 Cal. App.

4th 753, 758-59 (1996) (noting that under California law, the court was “aware of no authority that a moving

defendant must show all defendants are subject to jurisdiction in a particular alternative forum” when request-

ing a stay); cf. American Cemwood Corp. v. American Home Assurance Co., 87 Cal. App. 4th 431 (2001) (where

there were only five defendants, requiring moving party to show that all defendants were amenable to jurisdic-

tion in the alternative forum if a dismissal is requested, rather than simply a stay pending such a determination

after refiling in the alternative forum).

Practice Pointer: Where the defendants are so numerous that it cannot be determined whether all are

subject to suit in the other forum, consider asking the court to stay (rather than dismiss) the action. Plaintiffs

can seek to have the stay lifted if, after filing suit in the other forum, they can show that some defendants are

not subject to personal jurisdiction there. If, after some time, this determination has not been made due to

210 v Asbestos Medicine v November 2010

plaintiff ’s failure to diligently prosecute the claim in the other forum, the U.S. court may then have authority to

dismiss the action. See, e.g., Van Kuelen v. Cathay Pac. Airways, Ltd., 162 Cal. App. 4th 122 (2008).

Practice Pointer: Defendants’ agreement to submit to personal jurisdiction of the foreign country satis-

fies this requirement. BFI Group Divino Corp. v. JSC Russian Aluminum,298 Fed. Appx. 87, 91 (2d Cir. 2008) (“An

agreement by the defendant to submit to the jurisdiction of the foreign forum can generally satisfy this require-

ment”); see, e.g., In re Ford Motor Co.,580 F3d 308, 311 n.4 (5th Cir. 2009) (agreeing to submit to jurisdiction of

Mexican courts); see, e.g., Morris v. AGFA Corp., 144 Cal. App. 4th 1452, 1464 (2006) (finding an adequate alter-

native forum where defendants stipulated to alternative forum’s jurisdiction and waiver of any statute of limita-

tions defense).

2. Statute of limitations

Under federal rules and most states’ rules, an adequate alternative forum does not exist if a statute

of limitations bars bringing a case in a foreign forum that would be timely in the U.S. Norex Petroleum Ltd. v. Access Industries, Inc., 416 F3d 146, 158 (2d Cir. 2005).

Practice Pointer: Defendants’ agreement to waive any statute of limitations defense in the foreign

forum satisfies this requirement. See, e.g., Morris v. AGFA Corp., 144 Cal. App. 4th 1452, 1464 (2006) (finding an

adequate alternative forum where defendants stipulated to alternative forum’s jurisdiction and waiver of any

statute of limitations defense).

3. Unfavorable foreign law for plaintiff

“The availability of an adequate alternate forum does not depend on the existence of the identical

cause of action in the other forum.” PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65 (2d Cir. 1998).

Only on “rare occasions” will the alternative forum be so unsatisfactory that the forum is inadequate. BFI Group Divino Corp. v. JSC Russian Aluminum,298 Fed. Appx. 87, 91 (2d Cir. 2008).

It is ordinarily irrelevant that the foreign country may apply substantive law less favorable to plaintiff

“unless the remedy provided is so clearly inadequate or unsatisfactory that it is no remedy at all.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981) (finding fact that Scotland does not recognize products liability claim did

not constitute “no remedy” because negligence recovery possible); Stangvik, supra, 54 Cal. 3d at 754 (“[T]he fact

that California law would likely provide plaintiffs with certain advantages of procedural or substantive law can-

not be considered as a factor in plaintiffs’ favor in the forum non conveniens balance.”); Morris v. AGFA Corp., 144 Cal. App. 4th 1452, 1464 (2006) (“It is sufficient that the action can be brought, although not necessarily

won, in the suitable alternative forum.”).

a. Different remedies

An alternate forum is not inadequate simply because it provides a different range of remedies for

the same misconduct. Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir. 1991) (find-

ing RICO claims unavailable but tort and contractual claims adequate); De Melo v. Lederle Labs., 801 F.2d

1058, 1061 (8th Cir. 1986) (finding that Brazil was adequate alternative forum for consumer’s products liabil-

ity action, even though Brazilian law did not provide for punitive damages or recovery for pain and suffering);

Exter Shipping Ltd. v. Kilakos, 310 F. Supp. 2d 1301, 1322 (N.D. Ga. 2004) (“This Court finds that the diminished

likelihood of a punitive damages award does not render the United Kingdom courts’ remedy insufficient.”); BFI Group Divino Corp. v. JSC Russian Aluminum, 298 Fed.Appx. 87, 91-92 (2d Cir. 2008) (finding Nigeria to be an

adequate forum after identifying Nigerian analogs to causes of action for tortious interference and conspiracy

but not to a cause of action for unfair competition).


b. Damages cap

That foreign law imposes a severe limit on damages recoverable, rendering the claim uneconomic to

pursue, does not render the remedy inadequate. Gonzalez v. Chrysler Corp.,301 F3d 377, 383 (5th Cir. 2002)

(wrongful death action in Mexico for which maximum amount recoverable was $2500).

Practice Pointer: If the foreign forum truly is “so clearly inadequate or unsatisfactory that it is no rem-

edy at all,” consider using the foreign court’s choice of law rules to confer adequacy. Even if a remedy is other-

wise inadequate, a foreign court’s choice of law rules may enable it to apply U.S. law, thereby making the foreign

forum adequate. Creative Technology, Ltd. v. Aztech System Pte., Ltd. (9th Cir. 1995) 61 F.3d 696, 702-703.

c. Latin America

When the alternative forum is a Latin American country, plaintiffs sometimes argue that once they file

suit in a U.S. court, foreign statutes make the foreign forum unavailable. See, e.g., Decreto Numero 34-97 (1997)

(Guatemala); Ley de Defensa de Derechos Procesalas de Nacionales y Residentes (Law in Defense of the Pro-

cedural Rights of Nationals and Residents) (Honduras); Ley 55 (Ecuador); Article 40 of the Statute of Private

International Law (Venezuela).

i. Guatemala

“Plaintiff argues that Guatemalan law forbids disturbing a plaintiff ’s forum choice. Consequently, Gua-

temalan courts will not recognize jurisdiction that has been ‘manipulated’ by a forum non conveniens transfer.

However, a quick and decisive solution to this potential problem was reached in Delgado v. Shell Oil (S.D. Tex.

1995) 890 F. Supp. 1324. After finding Guatemala and other fora to be adequate to merit forum non conveni-

ens dismissal, the court directed that ‘in the event that the highest court of any foreign country finally affirms

the dismissal for lack of jurisdiction’ of any plaintiff ’s case, that plaintiff may return, and the court will resume

jurisdiction.” Polanco v. H.B. Fuller Co., 941 F. Supp. 1512, 1525 (D. Minn. 1996).

ii. Ecuador

Finding it unlikely that Ecuadorian courts would decide that Law 55 was a sufficient basis for con-

cluding that the Ecuadorian forum was unavailable, court stated that it would “qualify the dismissals here to

provide that in the event that a court of last review in Ecuador finally affirms the dismissal for lack of jurisdic-

tion pursuant to Law 55 of any action raising the claims here at issue pursued in good faith in Ecuador by any

of the plaintiffs here, this Court, upon motion made within 60 days, will resume jurisdiction over that action.”

Aguinda v. Texaco, Inc. 142 F. Supp. 2d 534, 547 (S.D.N.Y. 2001), aff ’d as modified, 303 F.3d 470 (noting that since

district court decision, Ecuadorian Constitutional Court had declared Law 55 to be unconstitutional).

iii. Venezuela

Similar argument rejected based on Venezuela law. Morales v. Ford Motor Co., 313 F. Supp. 2d 672 (S.D.

Tex. 2004).

4. Favorable foreign law for defendant (reverse forum shopping)

The possibility of a change in law favorable to defendant should not be considered. If the defendant

meets its burden, dismissal or stay is appropriate, regardless of the fact that defendant may also be motivated

by a desire to obtain a more favorable forum. Piper Aircraft Co. v. Reyno 454 U.S. 235, 252 n.19 (1981).


5. Allegations of biased, unstable, or corrupt foreign courts

Where a plaintiff rebuts the defendant’s claim of adequacy of the forum with charges that the foreign

judicial process is biased or corrupt, our district courts are reluctant to agree. It is not the business of our courts

to assume the responsibility for supervising the integrity of the judicial system of another sovereign nation.

BFI Group Divino Corp. v. JSC Russian Aluminum,298 Fed. Appx. 87, 91 (2d Cir. 2008); see also In re Arbitra-tion between Monegasque De Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 311 F.3d 488, 499 (2d Cir.2002)

(affirming dismissal on forum non conveniens grounds despite claims by plaintiff that forum was inadequate

because of “general corruption in the body politic” and state ownership of assets involved in the litigation);

Blanco v. Banco Indus. de Venezuela, S.A., 997 F.2d 974, 982 (2d Cir.1993) (affirming dismissal based on forum non conveniens despite contentions of “systemic corruption, delay and expense in the Venezuelan justice sys-

tem, as well as political instability in that country”); but cf. Rasoulzadeh v. Associated Press, 574 F.Supp. 854, 861

(S.D.N.Y.1983) (holding inadequate alternative forum because the court, in part, believed that plaintiffs would

not “obtain justice at the hands of the courts administered by Iranian mullahs”)

6. Different procedure

Procedural differences between a U.S. and a foreign court generally do not render the foreign forum

inadequate. Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir. 1991); see Windt v. Qwest Communications Int’l, Inc., 529 F.3d 183, 196-197 (3d Cir. 2008). For example, courts have rejected claims of

inadequacy based on the lack of availability of a jury trial (see, e.g., In re Union Carbide Corp. Gas Plant Disaster at Bhopal, 809 F.2d 195, 199 (2d Cir. 1987)); absence of broad pretrial discovery (see, e.g., id. (discovery limited

to evidence that may be admitted at trial)); see also Doe v. Hyland Therapeutics Div.,807 F. Supp. 1117) (S.D.N.Y.

1992); absence of availability of contingent fee arrangements (see, e.g., Murray v. British Broad. Corp., 81 F.3d

287 (2d Cir. 1996)); and absence of class actions procedures (Carijano v. Occidental Petroleum Corp., 548 F.

Supp. 2d 823, 830 (C.D. Cal. 2008)).

7. Delay in foreign court

Delays of a few years in the foreign country’s courts are of no legal significance. See Leon v. Million Air, Inc., 251 F.3d 1305, 1314 (11th Cir. 2001) (insufficient showing that Ecuador was inadequate forum because

of congestion and delay in Ecuadorian court system); Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078 (S.D. Fla.

1997) (five-year delay for civil actions). But extreme delay may render the remedy there so clearly inadequate

as to require denial of a motion to dismiss on forum non conveniens grounds. See Sablic v. Armada Shipping Aps, 973 F. Supp. 745 (S.D. Tex. 1997) (backlog of cases in Croatia possibly resulting in a lengthy delay cited as

one reason for finding it to be an inadequate forum); Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220 (3d

Cir. 1995) (upholding denial where it could take up to 25 years to resolve case in India); cf. Usha (India), Ltd. v. Honeywell Int’l, Inc., 421 F.3d 129 (2d Cir. 2005) (citing improvement in India’s court system and affirming dis-

missal).

D. Balancing of Private and Public Interest Factors

1. Private interest factors

a. Residence of parties and witnesses

b. Availability of compulsory process for attendance of witnesses

c. Costs of bringing willing witnesses and parties to the place of trial


Includes need to translate documents for court, jurors, and parties: In Carijano v. Occidental Petroleum Corp., 548 F. Supp. 2d 823, 833 (C.D. Cal. 2008), the court found that it would be prohibitively expensive to bring

witnesses to Los Angeles from Peru, considering the costs of plane tickets, and translation of oral and written

evidence. Further, having documents and testimony in a foreign language “militates strongly in favor of [the

foreign forum].” Blanco v. Banco Indus. de Venez. S.A., 997 F.2d 974, 982 (2d Cir. 1993).

d. Access to physical evidence and other sources of proof

e. Enforceability of judgment

Inability to enforce in a foreign country a judgment obtained in the U.S. weighs in favor of finding

the U.S. to be an inconvenient forum. For example, in In re Banco Santander Securities-Optimal Litig., 2010 WL

3036990 at *27-28 (S.D. Fla. 2010), the court explained that if plaintiffs were successful in the U.S., they would

likely be unable to enforce the judgment in Ireland, where there is no class action mechanism. “[I]f success-

ful here, [Plaintiffs] might obtain a judgment that could not be enforced and in the process squander the par-

ties’ time and money on a trial whose outcome would be largely irrelevant for the vast majority of the class

Plaintiffs.” Id.

2. Public interest factors

a. Burden on local courts and juries.

See, e.g., Hansen v. Owens-Corning Fiberglas Corp., 51 Cal. App. 4th 753, 760 (1996) (noting that “Cali-

fornia courts are already overburdened with asbestos litigation and have little or no interest in litigation involv-

ing injuries incurred outside of California by nonresidents”).

b. Local interest

Local interest in the lawsuit, including imposing jury duty on citizens who have no relation to the

litigation versus holding the trial in the view and reach of the citizens whom the trial might affect. See, e.g., Exter Shipping Ltd. v. Kilakos, 310 F. Supp. 2d 1301 (N.D. Ga. 2004) (acknowledging “the public interest in hav-

ing foreign courts with stronger claims to jurisdiction over the matter adjudicate such claims”).

c. Conflicts of law

Avoidance of unnecessary problems in conflicts of law or the application of foreign law. See, e.g., Exter Shipping, 310 F. Supp. 2d at 1327 (recognizing that the “[c]ourt would be forced to engage in the significant

interpretation and application of foreign law, further suggesting that dismissal of the action pursuant to the

doctrine of forum non conveniens is proper”); Ford v. Brown, 319 F3d 1302, 1309 (11th Cir. 2003) (noting inter-

national comity concerns).

E. Degree of Deference to Plaintiff’s Choice of Forum

1. Deference to plaintiff’s choice

Courts should give deference to a plaintiff ’s choice of forum, but that deference “varies with the cir-

cumstances.” BFI Group Divino Corp. v. JSC Russian Aluminum, 298 Fed. Appx. 87, 90 (2d Cir. 2008). A district

court deciding whether to defer to plaintiff ’s choice should consider factors such as: (1) whether the plaintiff is

a U.S. citizen; (2) convenience to the plaintiff; (3) availability of witnesses; (4) defendant’s amenability to suit;

(5) availability of appropriate legal assistance; (6) evidence of forum shopping to be subject to favorable law,

“the habitual generosity of juries in the United States, [and] the plaintiff ’s popularity or the defendant’s unpop-

ularity in the region.” Id.


Plaintiff ’s choice of forum ordinarily will not be disturbed unless the private and public interest fac-

tors strongly favor trial in the foreign country. See Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524

(1947) (even stronger presumption when plaintiff sues in his home forum). However, the heightened deference

given to American citizens suing in their home forum is not absolute. See Loya v. Starwood Hotels & Resorts,

583 F.3d 656, 665 (9th Cir. 2009) (dismissal of a Washington resident’s wrongful death action killed in a scuba

diving accident off the coast of Mexico); Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147 (2d Cir. 1980) (Amer-

ican citizenship does not preclude dismissal of action by American court on the ground of forum non conveni-ens); Morris v. AGFA Corp., 144 Cal. App. 4th 1452, 1463 (2006) (finding that although “an action by a California

resident cannot be dismissed under the doctrine of forum non conveniens, except under exceptional circum-

stances, … [e]ven an action brought by a California resident is subject to a stay”).

2. Foreign plaintiff

A foreign plaintiff ’s choice of forum deserves less deference than that of an American plaintiff. See

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981); see Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430 (2007) (when plaintiff ’s choice is not his home forum, the presumption in plaintiff ’s favor has

less force); see Vivendi SA v. T-Mobile USA Inc.,586 F.3d 689, 693-94 (9th Cir. 2009) (foreign plaintiff ’s choice

of forum given “little deference”); see Abad v. Bayer Corp., 563 F.3d 663, 666-67 (7th Cir. 2009) (less reason to

assume foreign plaintiff ’s choice of forum is convenient).

3. Plaintiff’s financial means

A court is likely to give more deference to plaintiff ’s choice of forum where he is an individual of mod-

est means. Carey v. Bayerische Hypo-Und Vereinsbank AG, 370 F.3d 234, 238 (2d Cir. 2004) (“For an individual of

modest means, the obligation to litigate in a foreign country is likely to represent a considerably greater obsta-

cle than for a large business organization--especially one maintaining a business presence in foreign countries.

For this reason, such an individual’s choice of the home forum may receive greater deference than the similar

choice made by a large organization which can easily handle the difficulties of engaging in litigation abroad.”).

4. Plaintiff’s safety

The danger plaintiff may risk in appearing in the foreign forum may be considered. See Aldana v. Del Monte Fresh Produce NA, Inc., 578 F.3d 1283, 1291 (11th Cir. 2009) (court “did not take lightly” possibility of

danger to torture victim if forced to return to foreign forum); see also Licea v. Curacao Drydock Co. Inc., 537 F.

Supp. 2d 1270, 1274-76 (S.D. Fla. 2008); see also Rasoulzadeh v. Associated Press, 574 F. Supp. 854, 861 (S.D.N.Y.

1983) (holding inadequate alternative forum because the court, in part, believed that plaintiffs “would probably

be shot” if they returned to Iran); but see Shields v. Mi Ryung Constr. Co., 508 F. Supp. 891, 896 (S.D.N.Y. 1981)

(plaintiff ’s assertions about his safety in Saudi Arabia were “unsubstantiated speculation”).

F. Conditions on Dismissals

Conditions are frequently imposed as a requirement for granting forum non conveniens dismissals or

stays. If a condition is not met, the U.S. action may be restored.

1. Examples

• Defendants’ consent to jurisdiction in the alternative forum. See, e.g., Stangvik v. Shiley, Inc., 54 Cal. 3d 744, 750 n.2 (1991); In re Union Carbide Corp. Gas Plant Disaster at Bhopal, 809

F.2d 195, 203-204 (2d Cir. 1987); R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164 (2d Cir.


1991); Mercier v. Sheraton Int’l, Inc., 981 F.2d 1345, 1349 (1st Cir. 1992); see also Ilusorio v. Ilusorio-Bildner, 103 F. Supp. 2d 672 (S.D.N.Y. 2000).

• Defendants’ waiver of any statute of limitations defense in the foreign action under foreign

or domestic law. See, e.g., Stangvik v. Shiley, Inc., 54 Cal. 3d 744, 750 n.2 (1991); Transunion,

811 F.2d at 128; In re Union Carbide Corp. Gas Plant Disaster in Bhopal, India, 809 F.2d 195,

203-204 (2d Cir. 1987); Blanco v. Banco Indus. de Venez. S.A., 997 F.2d 974, 984 (2d Cir.

1993).

• Defendants’ agreement to produce documents or witnesses in plaintiffs’ foreign action. See, e.g., Stangvik v. Shiley, Inc., 54 Cal.3d 744, 750 n.2 (1991); Piper, 454 U.S. at 257 n.25 (sug-

gesting that district courts can condition dismissal upon a defendant’s agreeing to provide

all relevant records); Ali v. Offshore Co., 753 F.2d 1327, 1334 n.16 (5th Cir.1985) (same).

• Compliance with discovery orders of the foreign court. See, e.g., Stangvik v. Shiley, Inc. 54

Cal. 3d 744, 750 n.2 (1991).

• Compliance with U.S. rules of civil procedure. See, e.g., Boskoff v. Transportes Aereos Por-tugueses, 17 Av. Cas. (CCH) 18,613, at 18,616 (N.D. Ill.1983) (accepting defendant’s volun-

tary commitment to provide discovery in foreign forum according to Federal Rules); cf. In re Union Carbide Corp. Gas Plant Disaster in Bhopal, India, 809 F.2d 195, 205 (2d Cir. 1987)

(finding error to condition on the application of broad discovery under U.S. Federal Rules of

Civil Procedure as to defendant only, rather than reciprocally).

• Defendants’ consent to pay any foreign judgment obtained by plaintiffs. See, e.g., Stangvik v. Shiley, Inc., 54 Cal.3d 744, 750 n.2 (1991); but see In re Union Carbide Corp. Gas Plant Disas-ter in Bhopal, India, 809 F.2d 195, 205 (2d Cir. 1987) (finding error to condition on consent

to satisfy foreign judgment where condition was imposed on the erroneous assumption that

such a judgment might not otherwise be enforceable in the United States).

• Foreign court’s acceptance of jurisdiction. See, e.g., In re Bridgestone/Firestone, Inc., 420 F.3d

702 (7th Cir. 2005) (vacating dismissal order where foreign court declined to exercise juris-

diction); BCCI v. State Bank of Pakistan, 273 F.3d 241, 247 (2d Cir. 2001) (requiring dismissal

on condition that foreign court accept jurisdiction).

G. Timing

A forum non conveniens motion should be brought as early as possible, before the court and the par-

ties invest significant time in the case. See, e.g., Zelinski v. Columbia 300, Inc.,) 335 F.3d 633, 643 (7th Cir. 2003

(finding motion brought one month before trial properly denied); Martinez v. Ford Motor Co., 185 Cal. App. 4th

9, 21 (2010) (finding motion untimely after defendant availed itself of favorable California discovery law to

acquire evidence on the merits of the case, which it could not have obtained in Mexico).

II. Second Line of Defense: Choice of Law

A. Choice of Law Methodologies

1. General rule that federal courts apply conflict of laws rules of the forum

Choice of law rules are deemed substantive for Erie purposes. Therefore, federal courts in diversity

cases will apply the same choice of law rules that the local state courts would apply. Patton v. Cox, 276 F.3d 493,


495 (9th Cir. 2002). In such event, the court may end up applying substantive rules of another country (just as

the courts in the forum state would do). Arno v. Club Med, Inc., 22 F.3d 1464, 1467 (9th Cir. 1994) (applying Cal-

ifornia’s choice of law standard to determine that French substantive law would be applied to issue).

2. Decisions in the United States

Decisions in the United States concerning the law applicable to torts are diverse. A number of states

apply the First Restatement’s “traditional” rule. The most substantial group of jurisdictions has adopted the

Second Restatement’s “most significant relationship” standard. Other jurisdictions follow variations of “inter-

est analysis” and other contemporary byproducts of decades of American jurisprudence. In most states, courts

have been inconsistent in their approach to choice of law and the evolution of conflicts law remains fluid. Table

1 sums one commentator’s interpretation of the various American conflicts rules for torts.

Table 1. Alphabetical List of States and Choice-of-LawMethodologies Followed for Torts

States TraditionalSignif.

contactsRestate-ment 2d

InterestAnalysis

Lex Fori BetterLaw

Combined Version

Alabama XAlaska XArizona XArkansas XCalifornia XColorado XConnecticut XDelaware XDist. of Col. XFlorida XGeorgia XHawaii XIdaho XIllinois XIndiana XIowa XKansas XKentucky XLouisiana XMaine XMaryland XMassachusetts XMichigan XMinnesota XMississippi XMissouri XMontana XNebraska X


Table 1. Alphabetical List of States and Choice-of-LawMethodologies Followed for Torts

States TraditionalSignif.

contactsRestate-ment 2d

InterestAnalysis

Lex Fori BetterLaw

Combined Version

Nevada XNew Hampshire XNew Jersey XNew Mexico XNew York XNo. Carolina XNorth Dakota XOhio XOklahoma XOregon XPennsylvania XPuerto Rico XRhode Island XSo. Carolina XSo. Dakota XTennessee XTexas XUtah XVermont XVirginia XWashington XWest Virginia XWisconsin XWyoming X

Symeon C. Symeonides, Choice of Law in the American Courts in 2009: Twenty-Third Annual

Survey, 58 Am. J. Comp. Law 227, 231-32 (2010); see also Rydstrom, Modern Status of Rule That

Substantive Rights of Parties to a Tort Action Are Governed by the Law of the Place of the Wrong, 29

A.L.R.3d 603 (1970 & Supp. 2010).

3. The “traditional” test (First Restatement)

Under the traditional rule, nearly all issues in tort are governed by the law of the “place of the wrong.”

Restatement (First) of Conflict of Laws §377 (“the state where the last event necessary to make an actor liable

for an alleged tort takes place”). Under this rule, the law of the place of the tort determines liability, or whether

a person has sustained a legal injury. In most cases, the place of the tort is considered to be the place where the

injury or harm was sustained.

Injury in one place resulting in death in another: in general, the place of the wrong is the place where

the injury occurred, not the place where the resulting death occurred. See Restatement (First) of Conflict of Laws §391, cmt. d (pointing out that it is the law of the place of the wrong, and not that of the place where defen-

dant’s conduct occurs or the place of death, which governs).


4. The “most significant relationship” test (Second Restatement): the majority approach.

a. General rule (section 6)

Under the most-significant-relationship test, the factors relevant to the choice of the applicable rule of

law include:

• the needs of the interstate and international systems

• the relevant policies of the forum

• the relevant policies of other interested states and the relative interests of those states in the

determination of the particular issue

• the protection of justified expectations

• the basic policies underlying the particular field of law

• certainty, predictability and uniformity of result

• ease in the determination and application of the law to be applied

b. Torts (section 145)

For issues in tort, the rights and liabilities of the parties are determined by the local law of the state

that, as to that issue, has the most significant relationship to the occurrence and the parties under the general

rule at section 6. With respect to issues in tort, contacts to be taken into account in applying the general rule at

section 6 include:

• the place where the injury occurred

• the place where the conduct causing the injury occurred

• the domicile, residence, nationality, place of incorporation and place of business of the par-

ties

• the place where the relationship, if any, between the parties is centered. See Restatement (Second) of Conflict of Laws §145(2)

—The approach is not merely to tally contacts, but to consider which contacts are most signifi-

cant. As such, mathematically more contacts in one place is not determinative. See Gregory v. Beazer East, 384 Ill.App.3d 178, 199 (2008); see also Travelers Indem. Co. v. Lake, 594 A.2d 38, 48

n.6 (Del. 1991) (“the Restatement test does not authorize a court to simply add up the interests on

both sides of the equation and automatically apply the law of the jurisdiction meeting the high-

est number of contacts listed in Sections 145 and 6. Section 145 has a qualitative aspect. It clearly

states that the “contacts are to be evaluated according to their relative importance with respect to

the particular issue.”).

c. Particular torts—personal injury (section 146)

The Second Restatement requires the application of separate rules to various kinds of torts and defines

the significant contacts that are to be considered in terms of issues, the nature of the tort, and the purposes of

the tort rules involved.

For personal injury actions, there is a presumption in favor of the local law of the forum where the

injury occurred. Under the Restatement (Second), the local law of the forum where the injury occurred deter-

mines the rights and liabilities of the parties, unless, with respect to the particular issue, some other place has a

“more significant relationship” under the general rule at section 6. See Restatement (Second) of Conflict of Laws §146.


• In virtually all instances where the conduct and injury occur in the same forum, that forum

has the dominant interest in regulating the conduct and determining whether it is tortious

in character, and whether the interest affected is entitled to legal protection. See Crossley v. Pacific Emp. Ins. Co., 198 Neb. 26, 30 (1977); Restatement (Second) of Conflict of Laws §146

cmt. d.

• If conduct and injury occur in different forums, the law of the forum where the injury

occurred will usually be applied to determine most issues involving tort. See Commercial Union Ins. Co. v. Upjohn Co., 409 F.Supp. 453, 457 (W.D. La. 1976); Restatement (Second) of Conflict of Laws §146 cmt. e.

5. The “governmental interest analysis” test

The governmental interest analysis is a three-step process. McCann v. Foster Wheeler, 48 Cal. 4th 68, 87

(2010); North American Asbestos v. Superior Court, 180 Cal. App. 3d 902, 905 (1986).

a. Step 1: Apparent conflict

First, the court determines whether the non-U.S. law, with regard to the particular issue in question,

differs from that of the forum state.

The non-U.S. law that is invoked must “materially differ” from the forum law. Garamendi v. Mission Ins. Co., 131 Cal. App. 4th 30, 41, 31 (2005) (absent a showing of “conflicting authority” in the non-U.S. jurisdic-

tions, the forum law applies).

Laws are “materially different” if their application would lead to different results. Costco Wholesale Corp. v. Liberty Mut. Ins. Co., 472 F. Supp. 2d 1183, 1200 (S.D. Cal. 2007).

b. Step 2: True conflict

Second, if there is a difference, the court examines each jurisdiction’s interest in the application of its

own law to determine whether a true conflict exists.

The absence of an interest on the U.S. forum’s part sufficient to sustain one side of a true conflict does

not settle entirely the conflicts question. Unless the foreign forum has a legitimate interest in the application of

its law, the U.S. forum’s weak, but pervasive, interest in applying its own law may still prevail. McGhee v. Arabian Am. Oil Co., 871 F.2d 1412, 1424 (9th Cir. 1989) (applying California choice of law analysis).

Possible “legitimate interest” of forum in which exposures occur:

• Attracting out-of-state business: In reviewing the statute of repose of the forum in which the

asbestos exposure occurred, the California Supreme Court stated: “When a state adopts a

rule of law limiting liability for commercial activity conducted within the state in order to

provide what the state perceives is fair treatment to, and an appropriate incentive for, busi-

ness enterprises, we believe that the state ordinarily has an interest in having that policy of

limited liability applied to out-of-state companies that conduct business in the state, as well

as to businesses incorporated or headquartered within the state. A state has a legitimate

interest in attracting out-of-state companies to do business within the state, both to obtain

tax and other revenue that such businesses may generate for the state, and to advance the

opportunity of state residents to obtain employment and the products and services offered

by out-of-state companies.” McCann v. Foster Wheeler, 48 Cal. 4th 68, 91-92 (2010) (finding

that forum of exposure had an interest in having its statute of repose applied and this inter-


est was not diminished because defendant corporation’s activities or residency were else-

where)

c. Step 3: Comparative impairment

Third, if the court finds that there is a true conflict, then the court evaluates and compares the nature

and strength of the interest of each jurisdiction in the application of its own law to determine and apply the law

of the forum whose interest would be more impaired if its law were not applied.

The task is not to determine whether the foreign rule or the local forum’s rule is the better or worthier

rule, but rather to decide--in light of the legal question at issue and the relevant state interests at stake--which

jurisdiction should be allocated the predominating lawmaking power under the circumstances of the present

case. McCann v. Foster Wheeler, 48 Cal. 4th 68, 97 (2010) .

In determining which forum has the greater interest and impairment, courts will consider the contacts

with each forum, such as the situs of the injury, the situs of the wrongful conduct, the domicile and business of

the parties, and the place of contracting.

Possible “predominant interests” of forum in which exposures occur:

• Regulating conduct within borders: Even under governmental interest analysis approach,

“choice of law cases nonetheless continue to recognize that a jurisdiction ordinarily has ‘the

predominant interest’ in regulating conduct that occurs within its borders and in being able

to assure individuals and commercial entities operating within its territory that applicable

limitations on liability set forth in the jurisdiction’s law will be available to those individu-

als and businesses in the event they are faced with litigation in the future.” McCann v. Fos-ter Wheeler, 48 Cal. 4th 68, 97-98 (2010); see also Offshore Rental Co. v. Continental Oil Co., 22 Cal. 3d 157, 168 (1978) (although the law of the place of the wrong is not necessarily the

applicable law, “the situs of the injury remains a relevant consideration”).

• Limiting or denying liability: When the law of the foreign forum limits or denies liability for

the conduct engaged in by the defendant in its territory, that foreign forum’s interest is pre-

dominant, and the local forum’s legitimate interest in providing a remedy for, or in facili-

tating recovery by, the local forum’s resident properly must be subordinated because of the

local forum’s diminished authority over activity that occurs in another forum. McCann v. Foster Wheeler, 48 Cal. 4th 68, 100-101 (2010) (finding that where current California resi-

dent’s asbestos exposures occurred in Oklahoma, Oklahoma bore “the primary responsi-

bility for regulating the conduct of those who create a risk of injury to persons within its

borders”).

B. Decided Issue by Issue: Depeçage

`1. Modern approaches

Under the post-traditional, modern approaches, a court is not bound to decide all of the issues in a

case under the law of a single jurisdiction. Rather, a choice of law analysis may involve examination of the vari-

ous jurisdictional interests as applied to the distinct issues to be adjudicated (e.g., strict liability, punitive dam-

ages, damages caps, comparative/contributory negligence, joint/several liability, statutes of limitations/repose,

etc.). See Second Restatement §145, cmt. d (“each issue is to receive separate consideration if it is one which

would be resolved differently under the local law rule of two or more of the potentially interested states”). This

technique, which makes the law of one jurisdiction govern one or more issues while still other issues are to be


controlled by the law of another jurisdiction, is sometimes termed “depeçage.” See Gregory v. Beazer East, 384

Ill.App.3d 178, 193 (2008) (“Depeçage is the process of cutting up a case into individual issues, each subject to

a separate choice of law analysis.”)

2. Multiple defendants

Where a lawsuit has multiple defendants, some courts have suggested that depeçage may not be

applied on a defendant-by-defendant basis. See, e.g., Gregory v. Beazer East, 384 Ill. App. 3d 178, 195-96 (2008)

(in an asbestos action, when considering the relevant situs of decedent’s exposures for choice of law analysis,

stating “it is the issues presented in a case to which depecage applies, not the different defendants in a case …

we find no precedent to support this use of depecage, that is, on a defendant-by-defendant basis. What is more,

we believe such an application of depecage is contrary to, and would cause myriad problems in, our court sys-

tem…applying different legal standards to each joint tortfeasor defendant in a multidefendant suit alleged

to have caused a single injury could lead to inconsistent results … . Applying depecage to separate out each

defendant in such a single-injury case is a misapplication of this process, which should focus on issues, not

parties.”); but see Rocky Mountain Helicopters, Inc. v. Bell Helicopter Co., 491 F.Supp. 611 (N.D. Tex. 1979) (in a

case involving both the defendant manufacturer of an assembled product and the defendant manufacturer of a

component, finding the issue of strict liability of each defendant to be governed by the law of different states);

but see also Bruce v. Martin-Marietta Corp., 544 F.2d 442 (10th Cir. 1976) (allowing products liability claims

against a manufacturer and an independent party in the chain of distribution who sold the product to the ulti-

mate consumer to be governed by the law of different states).

C. Timing

In general, timeliness is determined by a reasonableness standard. See, e.g., Fed. R. Civ. P. 44.1; see also Tex. R. Evid. 203 (requiring “notice in the pleadings or other reasonable written notice, and at least 30 days

prior to the date of trial such party shall furnish all parties copies of any written materials or sources that the

party intends to use as proof of the foreign law”).

For example, under federal rules, a party intending to raise an issue about a foreign country’s law must

give notice by pleading or other writing. Fed. R. Civ. P. 44.1. Although this text no longer requires the notice to

be timely, the accompanying Advisory Committee Notes reiterate this requirement by stating that the notice

“shall be … ‘reasonable’” and lists three factors for determining reasonableness:

• the stage which the case had reached at the time of the notice

• the reason proffered by the party for his failure to give earlier notice

• the importance to the case as a whole of the issue of foreign law sought to be raised

Practice Pointer: Earlier, if possible, is usually better. A court may be less apt to consider the motion if

filed on the verge of trial as a motion in limine or trial brief.

• “No credible reason has been presented why defendants have waited so long to bring this issue to

the forefront. Since this case was filed, they have known of all the circumstances warranting hav-

ing the issue presented and decided. Although the issue is presented as a ‘Trial Brief,’ it is really

a Motion to Apply Iranian Law. The motion should have been presented at the outset of the case

to allow all concerned time to elucidate on the issue and perhaps do formal discovery.” June 30,

2008 Order of Judge O’Brien in Shahabi v. AW Chesterton, Los Angeles Superior Court, Case No.

BC379085.


D. Determining and Proving Foreign Law

1. Determining foreign law

The court’s determination of foreign law typically is treated as a ruling on a question of law for the

court. See, e.g., Fed. R. Civ. P. 44.1, Cal. Evid. Code §310, and Tex. R. Evid. 203.

In such circumstances, differences of opinion among experts as to the interpretation or effect of for-

eign law generally do not create an issue of fact that would prevent summary judgment. Access Telecom, Inc. v. MCI Telecommunications Corp., 19 F.3d 694, 713 (5th Cir. 1999); see also Bridas Corp. v. Unocal Corp., 16 S.W.3d

893, 896 (Tex. App. 2000) (“Summary judgment is not precluded when experts disagree on the interpretation

of the law if, as in this case, the parties have not disputed that all of the pertinent foreign law was properly sub-

mitted in evidence. Where experts disagree on application of the law to the facts, the court is presented with a

question of law.”).

a. Federal rules

Under federal rules, F.R.C.P. 44.1 (Determining Foreign Law) broadly defines the materials appropri-

ate to determine non-U.S. law, providing: “The court, in determining foreign law, may consider any relevant

material or source, including testimony, whether or not … admissible under the Federal Rules of Evidence.”

Fed. R. Civ. P. 44.1; see Universe Sales Co., Ltd. v. Silver Castle, Ltd., 182 F.3d 1036, 1038 (9th Cir. 1999).

i. Foreign law should be argued and briefed like domestic law

As with domestic law, district courts may rely on both their own research and the evidence submit-

ted by the parties to determine foreign law. Sealord Marine Co., Ltd. v. American Bur. of Shipping, 220 F. Supp. 2d

260, 271 (S.D.N.Y. 2002); Wright & Miller, Federal Practice and Procedure: Civil 3d §2444 (2008) (a court “may

do its own research on foreign law, just as it customarily always has done on issues of domestic law”).

ii. Admissibility is not a prerequisite

The only limitation in the text of Rule 44.1 is “relevance,” which nevertheless permits a court to con-

sider “any material the parties wish to present” and “give them whatever probative value [the trial judge] thinks

they deserve.” Wright & Miller, Federal Practice and Procedure: Civil 3d §2444 (2008).

b. Stature or common law

In general, many states have adopted similar law by statute or common law. See Ghent, Comment Note—Pleading and Proof of Law of Foreign Country, 75 ALR 3d 177.

For example, Rule 203 of the Texas Rules of Evidence states: “The court, in determining the law of a

foreign nation, may consider any material or source, whether or not submitted by a party or admissible under

the rules of evidence, including but not limited to affidavits, testimony, briefs, and treatises. If the court consid-

ers sources other than those submitted by a party, it shall give all parties notice and a reasonable opportunity to

comment on the sources and to submit further materials for review by the court.”

2. Proving foreign law

“Sources typically consulted for the purpose of determining foreign law include, but are not limited to,

expert testimony and affidavits, academic publications, and a court’s independent research and analysis.” DEE-K Enters. Inc. v. Heveafil Sdn. Bhd., 174 F.R.D. 376, 379 n.4 (E.D. Va. 1997).


a. Expert witnesses

“Written or oral expert testimony accompanied by extracts from various kinds of foreign legal mate-

rials probably will continue to be the basic mode of proving foreign law.” Wright & Miller, Federal Practice and Procedure: Civil 3d§2444 (2008) . Accordingly, litigants commonly proffer the expert opinion of “individuals

such as retired judges, law professors, and practicing attorneys.” 2 Robert L. Haig, Bus. & Com. Litig. Fed. Cts.

§18:109 (2007).

But such testimony is not essential; the court may reject expert opinion and make its own determina-

tion upon examination of applicable foreign legal authorities. Access Telecom, Inc. v. MCI Telecommunications Corp., 19 F.3d 694, 713 (5th Cir. 1999); Curtis v. Beatrice Foods, Co., 481 F. Supp. 1275, 1285 (S.D.N.Y. 1980) (not-

ing that federal judges may reject even the uncontradicted conclusions of an expert witness and reach their

own decisions on the basis of independent examination of foreign legal authorities).

In proving foreign law, it is not essential that the witnesses be members of the bar of the foreign coun-

try. See Nicolas Eustathiou & Co. v. United States, 154 F. Supp. 515 (D.C. Va. 1957); In Re Estate of Spoya, 129

Mont. 83 (1955) (rejecting contention that before a person can be an expert in the field of foreign law, he must

have been admitted to practice law in some jurisdiction).

Generally, however, one who is presented as an expert to testify as to the law of a foreign country is a

practitioner of that country or, because of his position, he has had a reasonable opportunity to acquaint himself

with its provisions. Olijan v. Lublin, 38 Ohio L. Abs. 393 (1943).

i. Practicing attorneys

• Affidavit of German attorney familiar with German law, translation of letter from German

official regarding the law, and affidavit of Arkansas law professor regarding German law

found sufficient. AG Volkswagen v. Valdez, 897 S.W.2d 458, 461-62 (Tex.App.) .

• Affidavit from English solicitor regarding English law found sufficient. Lawrenson v. Global Marine, Inc., 869 S.W.2d 519, 525 (Tex.App. 1993).

• Court in considering expert affidavit of Dutch attorney explained that “[t]hough Rule 44.1

permits a court to consider any relevant material or source, expert testimony is the most

common method of determining foreign law.” Wheeling v. Seatrade Groningen, BV, 2007 WL

1589497, *7-*8 (E.D. Pa. May 31, 2007).

• Court accepted Mexican attorney’s affidavit regarding parental rights under Mexican law.

Whallon v. Lynn, 230 F.3d 450, 458 (1st Cir. 2000) (“Such affidavits are an acceptable form of

proof in determining issues of foreign law”).

• Court considered “the affidavits of two Korean lawyers,” a business person, and other docu-

ments. Neptune Orient Lines, Ltd., v. Halla Merchant Marine Co., 1998 WL 128993 (E.D. La.

1998).

• Compare: Court refused to consider affidavit that “lack[ed] any probative exposition of

German principles of contract interpretation, and reference[d] no authority on German

law principles.” Pfizer Inc. v. Elan Pharma. Research Corp., 812 F. Supp. 1352, 1360 (D. Del.

1993). Court held that parties submissions on foreign law were insufficient because they

were simply “affidavits from their own counsel in the prior Italian proceeding” who were

simply pressing “their views of Italian law[.]” The court explained that since these submis-

sions were from “interested sources who may be motivated to justify their own prior con-

duct” these were unreliable sources. Evergreen Marine Corp.(Taiwan) Ltd. v. Global Terminal


& Container, 2000 WL 1683449, at *4 (S.D.N.Y. 2000). Expert testimony on Italian law was

insufficient because the lawyer was “not a disinterested expert and had provided little basis

for assessing his expertise or weighing his opinions.” Farrell Lines Inc. v. Columbus Cello-Poly Corp., 32 F. Supp. 2d 118, 127 (S.D.N.Y. 1997).

• Example: See Appendix A for examples of affidavits in support of Motions to Apply Foreign

(Iranian) Law.

ii. Scholars

• Affidavits from law professors on Canadian law found sufficient. Reading & Bates Constr. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702, 706-707 (Tex. App. 1998).

• Court determined Russian law on summary judgment motion by evaluating declarations

from law school professors. Films By Jove, Inc. v. Berov, 154 F. Supp. 2d 432, 448-76 (E.D.N.Y.

2001).

• Professor was expert witness about the legal system of the Vatican. Alperin v. Vatican Bank,

2006 WL 1663847 (N.D. Cal. 2006).

iii. Other witnesses

• Foreign law librarian of Los Angeles County Law Library allowed to testify as an expert as to

the law of Norway, even though the witness had never lived in Norway and did not speak the

Norwegian language. See Johnson v. Johnson, 100 Cal. App. 2d 73 (1950).

• Court found that affidavits from two individuals with strong credentials in the area of inter-

national law and Austrian banking law were sufficient because “[a]n expert witness [testify-

ing about foreign law] is not required to meet any special qualifications. Indeed he need not

even be admitted to practice in the country whose law is in issue.” In re Grand Jury Proceed-ings, 40 F.3d 959, 964 (9th Cir. 1994).

• Court accepted defendant Russian boxer’s self-submitted but undisputed “characterization

of Russian property law” concerning his official residence. O’Donnell v. Shalayev, 2004 WL

2958698, at *9 (D.N.J. Dec. 22, 2004).

• Court accepted affidavit about Norwegian law from a bank officer whose “professional posi-

tion [as a Norwegian bank officer made] him competent to testify to the validity of a Nor-

wegian mortgage.” A/S Kreditt-Finans v. Cia Venetico De Navegacion S.A. of Panama, 560 F.

Supp. 705, 709-710 (E.D. Pa. 1983); see also Danisch v. Guardian Life Ins. Co., 19 F.R.D. 235

(D.C.N.Y. 1956) (granting motion for issuance of letters rogatory to examine agents of the

National Bank of Poland on matters of Polish law).

b. Documentary evidence

Statutes, codes, case law, and other non-U.S. secondary sources, such as treatises, are a common means

by which non-U.S. law is demonstrated.

i. Judicial notice

Some states have statutes that expressly provide for judicial notice of the laws of a foreign country.

See, e.g., Cal. Evid. Code §452(f), assembly comments (“Subdivision (f) refers to ‘the law’ of organizations of

nations, foreign nations, and public entities in foreign nations. This makes all law, in whatever form, subject to

judicial notice.”); Korea Water Resources Corp. v. Lee,8 Cal.Rptr.3d 853 (2004) (Court of appeal would take judi-


cial notice of Korea Code of Civil Procedure, as translated, in action by Korean corporation seeking recognition

of provisionally enforceable Korean money judgment against alleged tortfeasor.).

In the absence of such statutes, courts generally do not take judicial notice of the laws of another

country, but rather such laws must be pleaded and proved.

Practice Pointer: Even if the court will take judicial notice of foreign law, it is usually wise to present the

court with proof substantially as thorough as that which would be proffered if formal proof were required. It is

inadvisable to rely on an unelaborated text of a foreign statute or decision. See, e.g., Pennwell Corp. v. Ken Assoc., 123 S.W.3d 756, 761 (2003) (“a party requesting judicial notice must furnish the court with sufficient informa-

tion to enable it to properly comply with the request; otherwise, the failure to provide adequate proof results in

a presumption that the law of the foreign jurisdiction is identical to that of Texas”).

Counsel should offer enough background information to permit the court to comprehend the relevance

of the proffered material to the litigation. Wright & Miller, Federal Practice and Procedure: Civil 3d §2444 n.6

(2008); see, e.g., Cal. Evid. Code §454(b) (requiring that when the subject of judicial notice is the law of a foreign

nation and the court resorts to advice of experts, that such advice be received in open court or in writing).

ii. Excerpts of relevant law (with translation), accompanied by expert testimony

“Statutes, administrative material, and judicial decisions can be established most easily by introduc-

ing a copy of the applicable provisions or court reports supported by expert testimony about their meaning.”

Wright & Miller, Federal Practice and Procedure: Civil 3d §2444 (2008). In fact, expert testimony accompanied

by extracts from foreign legal material is the “basic method” by which foreign law is determined. Access Tele-com, Inc. v. MCI Telecommunications Corp., 19 F.3d 694, 713 (5th Cir. 1999).

Compare: When plaintiff merely provided “the text of the Hamburg Rules and a list of nations, includ-

ing Tunisia, that have enacted them into law” but not “expert testimony, the text of the actual enactment, Tuni-

sian court decisions, excerpts from treatises, or any other authoritative sources,” plaintiff failed to satisfy “the

burden of establishing Tunisian law.” Ferrostall, Inc. v. M/V Sea Phoenix, 447 F.3d 212, 218 (3d Cir. 2006).

iii. Texts and treatises

• “In addition to primary materials and expert testimony, a litigant may present any other

information concerning foreign law that is believed to further his or her cause, including

secondary sources such as texts and learned journals.” Wright & Miller, Federal Practice and Procedure: Civil 3d §2444 (2008).

• Martindale-Hubbell International Law Digest deemed sufficient to demonstrate Japanese

law that attorney’s fees were recoverable only in tort actions. Pennwell Corp. v. Ken Assoc., 123 SW3d 756, 761-62 (Tex. App. 2003).

• Copies of treatises on Danish law held admissible. See In Re Nielsen’s Estate, 118 Mont. 304

(1946).

• Court relied on treatise regarding Singaporean law in determining “that courts in Singapore

frequently cite to English and Malaysian case law as precedent.” Kim v. Co-op. Centrale Raif-feisen-Boerenleebank B.A., 364 F. Supp. 2d 346, 349 n.5 (S.D.N.Y. 2005).

iv. Foreign case law

• Court did not err in receiving in evidence the Civil Code of Jalisco, the opinion of two Mexi-

can lawyers and the decision of the Supreme Court of Mexico. See Bunting v. Chess, 416

S.W.2d 492 (Tex. Civ. App. 1967).


• Disregarding conflicting prior opinions of French foreign law experts (including a defense,

plaintiff, and court-appointed expert), the court relied solely upon a recent French court

decision submitted without any supporting expert testimony. The court explained that

“expert testimony on foreign law is frequently helpful to an American federal court charged

with finding foreign law, but there is no legal requirement that a court’s ruling with respect

to foreign law be bottomed on expert opinion.” Institut Pasteur v. Simon, 383 F. Supp. 2d 792,

795 n.2 (E.D. Pa. 2005).

• U.S. court looked to United Kingdom judicial decisions applying Romanian law to deter-

mine issue of Romanian law that previously had been undecided in U.S. and Romanian

courts. See General Star Nat. Ins. Co. v. Administratia Asigurarilor de Stat, 289 F.3d 434, 439-

40 (6th Cir. 2002).

III. Third Line of Defense: Borrowing Statutes

A. Purpose and Effect

1. Limited scope

Principally designed to discourage forum shopping, these statutes are limited to borrowing another

forum’s statute of limitations and/or repose when the cause of action in question “arose,” “originated,” or

“accrued” in the other forum. See McCann v. Foster Wheeler (2010) 48 Cal.4th 68, 84-85. Although the terms

vary, a borrowing statute usually provides, in effect, that a cause of action arising in another jurisdiction may

not be maintained in the forum if the action would be barred by the statute of limitations or repose of the juris-

diction in which the claim arose. See, e.g., Restatement (Second) of Conflict of Laws §142, cmt. f.

2. Foreign countries

A borrowing statute may apply to products liability claims arising in another country as well as in

another state of the United States. Sellon v. General Motors Corp., 571 F. Supp. 1094 (D.C. Del. 1983); Hafer v. Firestone Tire & Rubber Co., 523 F.Supp. 1216 (E.D. Pa. 1981); Buettgen v. Volkswagenwerk, AG, 505 F. Supp. 84

(W.D .Mich. 1980).

3. Majority of states

A majority of states have enacted some version of a borrowing statute. See, e.g., Dougherty, Validity, Construction, and Application, in Nonstatutory Personal Injury Actions, of State Statute Providing for Borrowing of Statute of Limitations of Another State, 41 A.L.R.4th 1025.

B. Example: California

No statute of repose. No functioning statute of limitations in asbestos litigation. However, California

does have a borrowing statute.

Cal. Code of Civ. Proc. §361: “When a cause of action has arisen in another state, or in a foreign coun-

try, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has

been a citizen of this state, and who has held the cause of action from the time it accrued.” [Emphasis added.]


1. Application is mechanical and mandatory

• If claim has arisen in another state and is time barred in that state, the court “shall not” maintain

the action.

• Whether righteous or not, plaintiff ’s reason for suing in California is irrelevant. Giest v. Sequoia Ventures, 83 Cal. App. 4th 300, 303 (2000) (“While the overriding purpose of borrowing statutes

is to curtail forum shopping, CCP 361 does not inquire into the plaintiff ’s subjective intentions in

suing in California.”)

2. Three steps

a. Step 1: Has the claim “arisen” in another forum?

• The court applies California law to determine when and where the claim has arisen. Under

California law, appellate courts have held that California’s standard “mandates a finding that

[a plaintiff ’s asbestos-related] cause of action arose … at the time of diagnosis.” Cossman v. DaimlerChrysler, 108 Cal. App. 4th 370, 377 (2003) (where exposures occurred in Indiana

and plaintiffs were residents of Indiana at time of diagnosis and exposure); see, e.g., Honer v. Ford Motor Co., 2007 WL 2985271 (2007) (unpublished decision finding claim “accrued”

under the “citizenship exception” to the borrowing statute at time of diagnosis in California

rather than when exposures occurred in New Jersey); but see McCann v. Foster Wheeler, 48

Cal. 4th 68, 86 (2010) (recognizing that when an asbestos claim “arises” may be “reasonably

debatable” when place of exposure, residency at time of diagnosis, and/or residency at time

of exposure differ).

• In practice and as possibly alluded to in McCann, when determining when and where an

asbestos-related claim arises, some trial courts expressly have looked to more than just

residency at the time of diagnosis, including the place of exposure and residency at time

of exposure. See, e.g., November 7, 2008 Order in Crull v. AW Chesterton, Alameda Superior

Court, Case No. RG08404667 (finding that claim arose in California, the place of exposure,

even though plaintiff was a resident of North Carolina at the time of diagnosis).

• For statutes of repose, which unlike statutes of limitations, are not related to “accrual,” Cali-

fornia courts appear to have focused on the place of exposure as the relevant event com-

mencing the period of repose. See, e.g., Giest v. Sequoia Ventures, 83 Cal. App. 4th 300, 305

(2000) (without discussion of residency, applying Montana’s statute of repose under bor-

rowing statute).

b. Step 2: “Citizenship exception”: Did the claim “accrue” while plaintiff was a California resident?

Citizenship Exception: “except in favor of one who has been a citizen of this state, and who has held the

cause of action from the time it accrued.”

• Can this be read as meaning that plaintiff is excepted from the reach of CCP 361 if he was a citi-

zen of CA at any time in the past? No. Cossman, 108 Cal. App. 4th, at 378.

• When an asbestos claim accrues may be “reasonably debatable” when place of exposure, residency

at time of diagnosis, and/or residency at time of exposure differ. See McCann v. Foster Wheeler, 48

Cal. 4th 68, 86 (2010). See discussion above regarding when a claim arises.


c. Step 3: Does the other forum’s statute of limitations or repose bar the action?

The court applies the law of the forum in which the claim has arisen to determine whether the action

is time-barred. See Cossman, 108 Cal. App. 4th, at 377-78.

IV. Cross-Border Discovery of Foreign Nonparties

A. General Background

The authority of the U.S. courts to compel nonparties to product documents located abroad raises

more complicated issues than party discovery. If a nonparty witness voluntarily complies with a party’s request

for information, then discovery generally can proceed without difficulty; the witness may provide informa-

tion informally (either orally or documents) or may agree to testify formally. Nonetheless, there are times that

nonparties may not cooperate voluntarily and a subpoena must be issued. For example, under Rule 45 of the

Federal Rules of Civil Procedure, a nonparty can be compelled to produce nonprivileged documents and other

materials—including materials located outside the United States—if it: (1) can be served with a subpoena pur-

suant to the territorial limits of Rule 45; (2) is subject to the personal jurisdiction of a U.S. court; and (3) pru-

dence does not lead to quashing the subpoena.

However, if a nonparty cannot be served or is not subject to the personal jurisdiction of the forum

court (e.g., a nonparty resident of a foreign country), then the court will lack the power to compel compliance

with a subpoena under Rule 45. See United States v. Bank of Nova Scotia, 691 F.2d 1384 (11th Cir. 1982). In this

event, obtaining foreign judicial assistance is the only alternative for seeking the requested materials. The two

principal alternatives to obtaining foreign judicial assistance are customary letters rogatory and multilateral

treaties, of which the primary treaty is the Hague Convention on the Taking of Evidence Abroad in Civil or

Commercial Matters (“Hague Evidence Convention” or “Convention”). See, e.g., Fed. R. Civ. P. 28(b) (allowing

depositions in a foreign country under a “letter rogatory” or “an applicable treaty”).

In the past, U.S. litigants seeking discovery of foreign nonparties that were not subject to the personal

jurisdiction of the forum court did so through letters rogatory. A letter rogatory is a letter of request, which may

or may not bear that title. They were often less useful because foreign courts were not required to execute them.

Now, the Hague Evidence Convention also facilitates access to discovery outside of the U.S. through

multilateral treaty.

• The difficulties that traditionally arose in the execution of U.S. letters rogatory led the U.S. to

undertake efforts to facilitate the transnational taking of evidence. At the urging of the U.S., the

Hague negotiated and drafted the Hague Evidence Convention. The U.S. became a party to the

Hague Evidence Convention in 1972. The Hague Evidence Convention sought to address the

“complicated, dilatory and expensive system of letters rogatory or letters of request.” On its own,

the Hague Evidence Convention “does not modify the law of any contracting state, require any

contracting state to use the Convention procedures, either in requesting evidence or in respond-

ing to such requests, or compel any contracting state to change its own evidence-gathering proce-

dures.” See Société Nationale Industrielle Aerospatiale v. U.S. Dist. Court for Southern Dist. of Iowa,

482 U.S. 522, 534 (1987).

• Member states are required to obtain requested evidence by applying the “appropriate measures

of compulsion” available under internal law. Thus, the Convention enables U.S litigants to obtain

evidence even if the foreign witness will not cooperate.


• Article 9 requires that requests “be executed expeditiously.” At least in theory and intent, the

lengthy delays that letters rogatory encounter should be avoided.

B. Obtaining Evidence

1. The Hague Evidence Convention

The Hague Evidence Convention provides that a member shall designate a central authority to receive

letters of request from another contracting state.

Approximately 47 countries have accepted the Hague Evidence Convention. For a list of the mem-

ber countries, see the Hague Conference on Private International Law web site at http://www.hcch.net/index_

en.php?act=conventions.status&cid=82

a. Central authority mechanism

Under the Convention, the principal means of taking evidence is through the letter of request pro-

cedure provided by articles 1 through 14. The Convention requires each member state to designate a central

authority. The purpose of the central authority is to receive letters of request from courts in other nations and

to transmit the foreign requests to the appropriate domestic authorities for execution. Unlike letters rogatory,

member states are generally required by the Convention to execute properly completed letters of request.

Practice Pointer: For a country-by-country list of central authorities, consult the Hague Conference on

International Law web site at http://www.hcch.net/index_en.php?act=conventions.authorities&cid=82. You

might also find this information, inter alia, at the U.S. Department of State’s web site at http://travel.state.gov/

law/judicial/judicial_2510.html.

b. Letter of request

The letter of request must contain numerous categories of information, including among others: (1)

contact information of the parties to the proceedings and their representatives; (2) questions to be put to the

persons to be examined; and (3) the nature of the proceeding for which the evidence is required. See Hague

Evidence Convention, ch. 1, art. 3. The letter of request must be in the language of the authority charged with

executing the request. Id. at art. 4.

To that end, the Hague has prepared a model letter of request. See Appendix B.

c. Execution of letters of request

In general, if the law of the member country does not require or allow for the production of the

requested evidence, the member country may refuse to provide the evidence. See Hague Evidence Convention,

art. 9 and 11.

As such, the execution of the letters of request under the Convention ordinarily occurs according to

the judicial procedures of the receiving state. It is important to note that the aggressive and liberal discovery

practices in the U.S. are not typically found in other countries, so even if a letter of request is properly sent,

access to witnesses and documents in the foreign country may still be restricted. See, infra, discussion regard-

ing article 23 declarations.

Judicial procedures in civil law nations differ significantly from those of the U.S. Discovery processes

in civil law countries are often supervised by a judicial officer and are not left under the control of private liti-

gants. Even logistics of the discovery process may be significantly different. For example, in many states, the

judge conducts the examination of witnesses. In some states, counsel may attend the examination and suggest


questions. In others, examinations may be closed to counsel. In addition, the term counsel in some countries

refers only to local counsel; U.S. counsel may be unable to participate in, or sometimes even attend, evidence-

taking sessions. Moreover, in many civil law countries the examination of witnesses is not under oath and is

recorded in a summary prepared by the judge rather than in verbatim transcript. Even in other common-law

countries, the scope of discovery is much narrower than that in the U.S. See Société Nationale Industrielle Aéro-spatiale v. United States Dist. Court, 482 U.S. 522, 560 n.18 (1987) (describing that in England interrogatories are

limited, depositions are rare, and discovery of non parties is difficult).

Because of these differences, the Convention allows for a “special method or procedure” for evidence-

taking if requested. See Hague Evidence Convention, art. 9. Under this provision, the U.S. attorney can request

permission to take verbatim transcripts, participate in examination, and so forth.

Practice Pointer: Even for member states to the Convention, it is important to check each foreign coun-

try’s individual requirements on obtaining evidence. For the requirements of more than 50 countries (including

those that are not member states of the Convention), consult the Department of State’s country-specific judi-

cial assistance information at http://travel.state.gov/law/judicial/judicial_2510.html. For still further informa-

tion regarding the operation of the Hague Evidence Convention in various member countries, see the member

states’ responses to the Hague’s 2008 Questionnaire at http://www.hcch.net/index_en.php?act=conventions.

publications&dtid=33&cid=82.

• For example, in Mexico, to compel production of evidence, the requestor must use the Hague

model letter of request (see Appendix B) and submit that document from the requesting U.S.

court to the Mexican central authority. See Appendix D for full text of Department of State’s judi-

cial assistance circular for Mexico.

d. Obtaining documentary evidence

Document discovery is conducted by means of a letter request, issued by the court where the action is

pending to the central authority of the other country. The central authority is tasked then with forwarding the

request to the appropriate judicial body. Hague Evidence Convention, arts. 1 & 2.

Exception for pretrial document requests: Article 23 of the Hague Evidence Convention provides that

a member country may declare that it “will not execute Letters of Request issued for the purpose of obtaining

pre-trial discovery of documents as known in Common Law countries.”

• For example, in 2003, the United Kingdom issued such a declaration that letters of request must

be sufficiently substantiated so as to avoid requests whereby one party merely seeks to find out

what documents may generally be in the possession of the other party to the proceeding.

• Other countries have exercised a similar right to issue a declaration restricting pretrial discovery

under article 23. See, e.g., Argentina, Australia, Bulgaria, China, Cyprus, Denmark, Estonia, Fin-

land, France, Germany, Greece, Hungary, India, Italy, Lithuania, Luxembourg, Mexico, Monaco,

Netherlands, Norway, Poland, Portugal, Romania, South Africa, Seychelles, Singapore, Spain, Sri

Lanka, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, and Venezuela.

e. Obtaining deposition testimony

Standard methods to obtain deposition testimony include a letter of request, a request that the testi-

mony be taken before a diplomatic or consular officer, or use of a specially appointed commissioner in the for-

eign jurisdiction.

A letter of request for deposition testimony can lead to the testimony being taken in a proceeding

under the normal evidentiary rules of the country where the witness is located. In the alternative, the Con-


vention also provides procedures for the taking of testimony in front of a diplomatic or consular officer of the

country where the action is pending, or by a commissioner specially appointed by the court in which the action

is pending. See Hague Evidence Convention, arts. 15-22.

f. Video-link technology

The Hague’s Permanent Bureau has submitted preliminary conclusions that the Hague Evidence Con-

vention:

requires a member State to execute a Letter of Request asking that evidence be taken by video-

link, if the requested State has video-link facilities in some or all of its courtrooms, subject to

the availability of video-link equipment, and subject to the compatibility of technology of the

Requested and Requesting States, and permits video-link evidence to be taken by a diplomatic

official, consular agent or commissioner, provided that adequate permission has been granted,

and provided that the practice is not forbidden by the member State in which the evidence is to

be taken.

See The Taking of Evidence by Video-Link under the Hague Evidence Convention, drawn up by the Per-

manent Bureau, Prel. Doc. No 6 of Dec. 2008.

2. Letters rogatory

“[A] letter rogatory is the request by a domestic court to a foreign court to take evidence from a certain

witness.” See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 248 (2004). Evidence sought can include

testimony or documents.

a. Using a letter rogatory

The State Department may “directly or through suitable channels” receive or transmit letters rogatory

or requests to foreign jurisdictions. 28 U.S.C.S. §1781. A letter rogatory may also be requested directly to the

foreign agency, tribunal or officer to which the request is addressed.

b. Drafting a letter rogatory

The procedures for drafting the letter will vary depending on the foreign jurisdiction where evidence

is sought. The Department of State recommends the following approach.

• Review the country specific judicial assistance information on the Department of State

Internet page.

• Review U.S. state or federal law on the subject.

• See suggested text for letters rogatory: http://travel.state.gov/law/judicial/judicial_683.

html#sample. (Included at Appendix C)

• In looking at the draft, consider whether a judge in a foreign country speaking another lan-

guage will understand what you are requesting.

• Secure the signature of a judge in the U.S. on the letter rogatory.

• Obtain any necessary authentications as specified in the Department of State’s country spe-

cific judicial assistance information at http://travel.state.gov/law/judicial/judicial_2510.html.

• If the language of the country where you are seeking discovery is not English, you should

obtain a certified translation of the letter rogatory and any supporting documents and pre-

pare the entire package in duplicate for transmittal to the U.S. Department of State.


Practice Pointer: For a walkthrough on how to prepare and serve a letter rogatory, consult: http://travel.

state.gov/law/judicial/judicial_683.html (Appendix C).

Practice Pointer: As with obtaining evidence under the Hague Evidence Convention, it is important to

check each foreign country’s individual requirements on obtaining evidence as well. For the requirements of

more than 50 countries, consult the Department of State’s country-specific judicial assistance information at

http://travel.state.gov/law/judicial/judicial_2510.html.

For example, Canada is not a party to any multilateral treaty on obtaining evidence. See Appendix E

for full text of Department of State’s judicial assistance circular for Canada.

V. Resources

A. Internet

1. Proskauer on International Litigation and Arbitration: Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes, and Avoiding Cross-Border Business or Regulatory (http://

www.proskauerguide.com/toc)

2. U.S. Department of State, Judicial Assistance – Country Specific Judicial Assistance Information

(http://travel.state.gov/law/judicial/judicial_2510.html)

3. U.S. Department of State, Judicial Assistance – Obtaining Evidence Abroad (http://travel.state.

gov/law/judicial/judicial_2514.html)

4. U.S. Department of State, Judicial Assistance – Preparation of Letters Rogatory (http://travel.state.


5. Hague Conference on Private International Law web site (http://www.hcch.net/index_

en.php?act=conventions.text&cid=82)

B. Treatise

Born, International Civil Litigation in United States Courts (4th ed. 2007)

VI. Appendix A. Examples of Affidavits in Support of Motion to Apply Foreign (Iranian) Law

B. Model for Letters of Request recommended for use in applying the Hague Convention of 18

March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (http://www.hcch.

net/index_en.php?act=publications.details&pid=3309&dtid=2)

C. U.S. Department of State Circular: Preparation of Letters Rogatory (http://travel.state.gov/law/

judicial/judicial_683.html)

D. U.S. Department of State Circular: International Judicial Assistance Mexico (http://travel.state.


E. U.S. Department of State Circular: Judicial Assistance in Canada (http://travel.state.gov/law/judi-

cial/judicial_682.html)


Appendices

2010 DRI Defending Claims of Foreign Litigants - Practice Guide.pdf

Documents

Transcript of 2010 DRI Defending Claims of Foreign Litigants - Practice Guide.pdf