Research On The Application Of Comity Analysis In American Exterritorial Discovery

Gucci v.Weixing Li is a trademark litigation between Gucci and Chinese counterfeiters.In this case American court demanded non-party Bank of China(BOC)to provide documents and information about defendant's accounts located in China,pursuant to Federal Rules of Civil Procedure(FRCP).BOC refused to provide such documents and claimed such production would violate Chinese laws,and insisted the discovery request was more properly made under the Hague Evidence Convention.However,American court still favored the plaintiff's request at last.When American courts deal with such exterritorial discovery,the rules in Aerospatiale case apply.In Aerospatiale case,the Supreme Court held that the Hague Convention is neither the exclusive method nor the first method to use and the comity principle requires case-by-case analysis to decide whether to use FRCP or the Hague Evidence Convention.The comity analysis is suggested by Restatement(Third)of Foreign Relations Law of the United States§442(1)(c).These factors are(1)the importance to the...litigation of the documents or other information requested;(2)the degree of specificity of the request;(3)whether the information originated in the United States;(4)the availability of alternative means of securing the information;and(5)the extent to which noncompliance with the request would undermine important interests of the United States,or compliance with the request would undermine important interests of the state where the information is located.Courts in the Second Circuit may also consider(6)the hardship of compliance on the party or witness from whom discovery is sought;(7)the good faith of the party resisting discovery.This thesis elected cases in federal courts of New York state(including the Supreme Court cases)from 2010 to date,discussed the application of comity analysis in these cases,concluded the problems of using it,such as pro-forum bias,lack of guidance,complicated,result-oriented and neglect the essence of “comity”.Therefore,I suggested to use the Hague Evidence Convention first and hope China to articulate its interests,demonstrate its compliance with international treaties,improve efficiency,promote the conclusion of bilateral judicial assistance treaties and resolve such conflicts with America.