American law firms and lawyers often serve subpoenas on Canadians as non-parties to the U.S. civil litigation. When they do so, they presume that the subpoena is valid and enforceable in Canada.
Well, it’s not. (more…)
Archive for the ‘discovery’ Category
Your American Subpoena Ain’t No Good ‘Round Here
October 2, 2012Quebec judge issues Letters Rogatory on alleged spoliation of evidence by US and UK lawyers
August 10, 2011
Image by jon.hayes via Flickr
The Quebec court decision in Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp., 2011 QCCS 2376 (CanLII), involved an application for letters rogatory in two tobacco industry class actions (recently settled on July 4, 2011, between the Plaintiffs and the Government of Canada. The Defendants had no part in this Agreement.)
The class plaintiffs sought to examine two attorneys: John Meltzer of London, England and David Schechter of Louisville, Kentucky, USA , whom they alleged were involved directly or indirectly with the spoliation of evidence (destruction of documents) by Imperial Tobacco Canada Ltee (“ITL”) during the early 1990′s: Mr. Meltzer, then of the firm Lowell, White, Durrant, acted as outside counsel to British American Tobacco (“BAT“) and Mr. Schechter appears to have been in-house counsel at Brown and Williamson (“B&W“).
The Plaintiffs sought an order compelling each Attorney “to appear (near his place of business) to be examined, by way of a videoconference, by the attorneys for Petitioners on all facts of which he has knowledge with respect to the litigation between the parties and to give communication of any documents that may be in his possession and which are relevant to this litigation”. (more…)
Dustin B. Benham, “Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery”
May 5, 2011
Image via Wikipedia
Dustin B. Benham (Texas Tech University School of Law) has published “Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery”, SMU Law Rev., Vol. 64, 2011.
The abstract reads:
The proliferation of digital evidence and discovery has raised serious questions about litigation fraud in recent years. Legal tabloids are often headlined with the latest example of discovery abuse that resulted in multi-million dollar sanctions. But what about the cases of serious discovery abuse or perjury that neither the opposing party nor the court ever catch? These abuses may very well lead to judgments that do not reflect a result based on the true merits of the case. If a party seeks relief based on fraud within one year from the entry of judgment, Federal Rule of Civil Procedure 60(b) gives the trial court plenary power to vacate the judgment. For fraud discovered outside of one year, however, the district court’s powers are more limited, and relief is often contingent upon whether the fraud is deemed intrinsic or extrinsic. Indeed, a majority of the circuits hold that after one year a party cannot obtain post-judgment relief based on perjury or discovery abuse because these frauds are intrinsic. This article contends that the distinction between intrinsic and extrinsic fraud should be abolished because Twombly and Iqbal have created an effective pleading-stage screening mechanism to prevent the meritless re-litigation of cases.
This article proceeds in five parts. Part II examines the origins and history of modern post-judgment relief before and after the adoption of Rule 60. Next, Part III explores the distinction between intrinsic and extrinsic fraud in the context of independent actions. Part IV of this article addresses the rise of plausibility pleading in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. In these cases, the Supreme Court overruled Conley v. Gibson, announcing a new pleading paradigm that applies to all civil actions filed in federal court, including a judgment-relief action. In a move away from notice-pleading, the Court held that a civil complaint must plausibly allege a cause of action. Finally, Part V of this article contends that this increased pleading scrutiny serves as a better screening mechanism for post-judgment fraud claims than the distinction between intrinsic and extrinsic fraud does. By screening fraud claims individually, a court can better assess whether the claim could have been raised in the original litigation. Screening cases for this trait results in a better balance between the often-competing values of judgments that reflect truth and judgments that are final.
(Number of Pages in PDF File: 59)
The article may be downloaded via SSRN here.
Related Articles
- Decision of Interest: Twombly/Iqbal and Affirmative Defenses (lawprofessors.typepad.com)
- The Situational Effects of Iqbal (thesituationist.wordpress.com)
S.I. Strong on “Jurisdictional Discovery in Transnational Litigation: Extraterritorial Effects of United States Federal Practice”
January 17, 2011
S.I. Strong (University of Missouri School of Law) has published “Jurisdictional Discovery in Transnational Litigation: Extraterritorial Effects of United States Federal Practice” Journal of Private International Law, Vol. 7, 2011. The abstract reads:
Jurisdictional discovery is a largely unknown, uniquely American device that combines two of the more internationally problematic aspects of United States civil procedure, namely an exceptionally broad view of extraterritorial jurisdiction and an expansive approach to pre-trial discovery. The mechanism – which is widely available and often used in cases where the defendant challenges the jurisdiction of the court – comes into play before the court’s jurisdiction over the defendant is even established and allows plaintiffs to ask defendants to produce a vast array of documents and information that can be used to justify the plaintiff’s claim that jurisdiction in this court is proper. This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.
The article is available for free download on SSRN here.
Two New Papers on Jurisdiction [SSRN]
October 8, 2009Blog readers may be interested in two new SSRN posts on the topic of jurisdiction.
The first is an article by S.I. Strong (University of Missouri School of Law) entitled: “Jurisdictional Discovery in United States Federal Courts” , University of Missouri School of Law Legal Studies Research Paper No. 2009-26, which provides a detailed historical review of jurisdictional discovery—a uniquely American procedural device—and offers a valuable comparative law analysis of the differences between American and English standards for proof of jurisdictional facts. Here is the abstract:
Jurisdictional discovery ties together three principles central to federal civil procedure: the right to broad discovery, the need for liberal notice pleading and the court’s inherent power to determine its own jurisdiction. The device is also inextricably linked to complex constitutional and legislative policies regarding the jurisdictional reach of U.S. federal courts. The complicated and often hidden aspects of jurisdictional discovery make analysis difficult, and measures that may seem acceptable in theory turn out to be highly problematic in practice. Indeed, the concept of “limited jurisdictional discovery” has disappeared as plaintiffs request – and judges routinely permit – extensive and expensive discovery before defendants are even determined to be properly in front of the court.
The Article begins with a discussion of the historical development and jurisprudential bases for jurisdictional discovery, then analyzes the two major structural problems with the device, namely (1) the lack of any identifiable standard regarding when jurisdictional discovery will be ordered and (2) the absence of any understanding about the proper scope of such discovery. Next, the Article describes the root causes of these structural inadequacies and proposes several ways to address the root concerns, relying on a new line of Supreme Court precedent (including Ashcroft v. Iqbal) as well as analogies to other common law jurisdictions. The paper concludes by outlining several judicial and legislative reforms that would improve the means by which U.S. federal courts establish jurisdiction.
Although jurisdictional discovery is occasionally discussed in limited, subject-specific contexts, the device has not been subject to a comprehensive, in-depth analysis since the 1970s, which means that this Article fills a major gap in the literature. Furthermore, the piece is particularly timely given several recent petitions for certiorari to resolve ambiguities and circuit splits in this area of law as well as recent Supreme Court precedents regarding pleadings standards and the absence of jurisdictional hierarchies.
The second is a paper is by Helena Gluzman (University of Toronto): “On Universal Jurisdiction – Birth, Life and a Near-Death Experience?” in LAW & GLOBALIZATION, Bocconi School of Law Student-Edited Papers, ed., VDM Publishing, 2009/Bocconi School of Law Student-Edited Papers, No. 2009-08/EN, where the author discusses the historical and academic debate between “conditional universal jurisdiction’ which requires the presence of the accused in the prosecuting state, and ‘absolute universal jurisdiction, which does not, concluding that political and administrative costs appear to outweigh the benefits of universality.Here is the abstract:
This paper investigates the topic of universal jurisdiction, ie the supranational prosecution and repression – without the necessity of a link between the accused and the prosecuting state – of crimes of such gravity and magnitude as to collide with certain core values accepted by the international community and transcending the peculiarity of national interests. The focus of the chapter is exactly to try and discern the scope of universal jurisdiction, distinguishing between the two different versions of universality theorized by contemporary authors: ‘conditional universal jurisdiction,’ which requires the presence of the accused in the prosecuting state, and ‘absolute universal jurisdiction’, according to which the accused does not have to be present in order to make the exercise of universal jurisdiction possible. As a matter of fact, only a handful of states currently possesses national legislation covering the exercise of ‘absolute universal jurisdiction’, as a confirmation that, notwithstanding the general scholarly consent in recognizing the existence of a universality principle, no agreement actually exists about this principle’s content. By means of an historical overview of the most noteworthy examples of implementation of universal jurisdiction, Helena Gluzman displays various arguments against it – e.g. its administrative costs, the local concern connected to its enforcement and the related risk of political manipulations, the criticalities related to the need of granting the accused a due process of law – showing the shortcomings of such jurisdiction with particular regard to its less well accepted form (the ‘absolute’ one), whose theoretical foundations seem to have been historically undermined by the Nuremberg and Eichmann experiences. Prominent exercises of absolute universal jurisdiction, however, also illustrate its practical pitfalls, as the associated political and administrative costs seem to widely outweigh the benefits of universality.
Antonin I. Pribetic
