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]
mashby@mckennalong.com
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Matthew K. Ashby is a partner in McKenna Long & Aldridges 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.

Table of Contents

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: Depeage................................................................................................... 220
`1. Modern approaches................................................................................................................... 220
2. Multiple defendants................................................................................................................. 221
C. Timing............................................................................................................................................ 221
D. Determining and Proving Foreign Law.......................................................................................... 222
Defending Claims of Foreign Litigants v Ashby v 207
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 Intl Co. Ltd. v. Malaysia Intl Shipping Corp., 549 U.S. 422, 429 (2007), for recent statement 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 requesting 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 jurisdiction 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
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 satisfies 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 requirement); 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 alternative forum where defendants stipulated to alternative forums jurisdiction and waiver of any statute of limitations 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 forums 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 cannot 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) (finding 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 consumers products liability 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).
210 v Asbestos Medicine v November 2010
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 remedy at all, consider using the foreign courts choice of law rules to confer adequacy. Even if a remedy is otherwise inadequate, a foreign courts 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 Procedural 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, Guatemalan 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 conveniens 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 concluding 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 jurisdiction 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 defendants 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 Arbitration 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 system, 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 Intl, 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 countrys 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 Intl, Inc., 421 F.3d 129 (2d Cir. 2005) (citing improvement in Indias court system and affirming dismissal).
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 successful here, [Plaintiffs] might obtain a judgment that could not be enforced and in the process squander the parties 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 California courts are already overburdened with asbestos litigation and have little or no interest in litigation involving 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 having 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 international comity concerns).
E. Degree of Deference to Plaintiffs Choice of Forum

1. Deference to plaintiffs choice
Courts should give deference to a plaintiff s choice of forum, but that deference varies with the circumstances. 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) defendants 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 defendants unpopularity in the region. Id.
Plaintiff s choice of forum ordinarily will not be disturbed unless the private and public interest factors 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 residents 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) (American citizenship does not preclude dismissal of action by American court on the ground of forum non conveniens); 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 circumstances, [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 Intl Co. Ltd. v. Malaysia Intl 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. Plaintiffs financial means
A court is likely to give more deference to plaintiff s choice of forum where he is an individual of modest 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 obstacle than for a large business organization--especially one maintaining a business presence in foreign countries.
For this reason, such an individuals 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. Plaintiffs 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 Intl, 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 (suggesting that district courts can condition dismissal upon a defendants 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 Portugueses, 17 Av. Cas. (CCH) 18,613, at 18,616 (N.D. Ill.1983) (accepting defendants voluntary 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 Disaster 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 courts 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 jurisdiction); 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 parties 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 Californias 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 Restatements traditional rule. The most substantial group of jurisdictions has adopted the
Second Restatements most significant relationship standard. Other jurisdictions follow variations of interest 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 commentators interpretation of the various American conflicts rules for torts.
Table 1. Alphabetical List of States and Choice-of-Law

Methodologies Followed for Torts
States
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Dist. of Col.
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Traditional
X
Signif.
contacts
Restatement 2d
Interest
Analysis
Lex Fori
Better
Law
Combined
Version
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Table 1. Alphabetical List of States and Choice-of-Law

Methodologies Followed for Torts
States
Traditional
Nevada
New Hampshire
New Jersey
New Mexico
New York
No. Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
So. Carolina
So. Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Signif.
contacts
Restatement 2d
X
Interest
Analysis
Lex Fori
Better
Law
Combined
Version
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
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 defendants 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 parties
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 significant. 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 highest 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 tortspersonal 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 determines 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. jurisdictions, 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 jurisdictions interest in the application of its
own law to determine whether a true conflict exists.
The absence of an interest on the U.S. forums 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. forums 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, business 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 corporations activities or residency were elsewhere)
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 forums 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 jurisdictions law will be available to those individuals and businesses in the event they are faced with litigation in the future. McCann v. Foster 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 forums interest is predominant, and the local forums legitimate interest in providing a remedy for, or in facilitating recovery by, the local forums resident properly must be subordinated because of the
local forums 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 residents asbestos exposures occurred in Oklahoma, Oklahoma bore the primary responsibility for regulating the conduct of those who create a risk of injury to persons within its
borders).
B. Decided Issue by Issue: Depeage

`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 various jurisdictional interests as applied to the distinct issues to be adjudicated (e.g., strict liability, punitive damages, 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 depeage. See Gregory v. Beazer East, 384
Ill.App.3d 178, 193 (2008) (Depeage 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 depeage 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 decedents 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 systemapplying 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 ultimate 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 countrys 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 having 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 OBrien in Shahabi v. AW Chesterton, Los Angeles Superior Court, Case No.
BC379085.
D. Determining and Proving Foreign Law

1. Determining foreign law
The courts 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 foreign 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 submitted 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 appropriate 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 submitted 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 consider 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
NotePleading 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 considers 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 courts independent research and analysis. DEEK 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 materials probably will continue to be the basic mode of proving foreign law. Wright & Miller, Federal Practice and
Procedure: Civil 3d2444 (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 determination 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) (noting 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 country. 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 attorneys 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 documents. 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 submissions were from interested sources who may be motivated to justify their own prior conduct 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 international law and Austrian banking law were sufficient because [a]n expert witness [testifying 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 Proceedings, 40 F.3d 959, 964 (9th Cir. 1994).
Court accepted defendant Russian boxers self-submitted but undisputed characterization

of Russian property law concerning his official residence. ODonnell 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 position [as a Norwegian bank officer made] him competent to testify to the validity of a Norwegian 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 judi224 v Asbestos Medicine v November 2010
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 information 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 introducing 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 Telecom, 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, including Tunisia, that have enacted them into law but not expert testimony, the text of the actual enactment, Tunisian 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 attorneys 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 Nielsens 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 Raiffeisen-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 Mexican 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 courts 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 determine 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, 43940 (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
forums 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 jurisdiction 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 country, 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 Californias 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, California courts appear to have focused on the place of exposure as the relevant event commencing the period of repose. See, e.g., Giest v. Sequoia Ventures, 83 Cal. App. 4th 300, 305
(2000) (without discussion of residency, applying Montanas statute of repose under borrowing 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 citizen 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 forums 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 partys request
for information, then discovery generally can proceed without difficulty; the witness may provide information 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
materialsincluding materials located outside the United Statesif it: (1) can be served with a subpoena pursuant to the territorial limits of Rule 45; (2) is subject to the personal jurisdiction of a U.S. court; and (3) prudence 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 responding to such requests, or compel any contracting state to change its own evidence-gathering procedures. See Socit 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 member 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 procedure 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 States 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 regarding 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 litigants. 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, evidencetaking 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 Socit Nationale Industrielle Arospatiale 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 evidencetaking 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 countrys 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 States country-specific judicial assistance information at http://travel.state.gov/law/judicial/judicial_2510.html. For still further information regarding the operation of the Hague Evidence Convention in various member countries, see the member
states responses to the Hagues 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 States judicial 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, Finland, 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 testimony be taken before a diplomatic or consular officer, or use of a specially appointed commissioner in the foreign 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 Con230 v Asbestos Medicine v November 2010
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 Hagues Permanent Bureau has submitted preliminary conclusions that the Hague Evidence Convention:
requires a member State to execute a Letter of Request asking that evidence be taken by videolink, 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 Permanent 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 language 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 States country specific 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 prepare 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 countrys individual requirements on obtaining evidence as well. For the requirements of
more than 50 countries, consult the Department of States 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 States judicial assistance circular for Canada.
V. Resources
A. Internet
1. Proskauer on International Litigation and Arbitration: Managing, Resolving, and Avoiding CrossBorder 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/judicial/judicial_682.html)
Appendices

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Defending Claims of Foreign Litigants

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Defending Claims of Foreign Litigants

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

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

Defending Claims of Foreign Litigants

I. First Line of Defense: Forum Non Conveniens

C. Availability of Adequate Alternative Forum

Defending Claims of Foreign Litigants v Ashby v 211

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

D. Balancing of Private and Public Interest Factors

E. Degree of Deference to Plaintiffs Choice of Forum

Defending Claims of Foreign Litigants v Ashby v 213

214 v Asbestos Medicine v November 2010

Defendants agreement to produce documents or witnesses in plaintiffs foreign action. See,

II. Second Line of Defense: Choice of Law

Table 1. Alphabetical List of States and Choice-of-Law

216 v Asbestos Medicine v November 2010

Table 1. Alphabetical List of States and Choice-of-Law

the needs of the interstate and international systems

the relevant policies of the forum

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

the place where the injury occurred

the place where the conduct causing the injury occurred

5. The governmental interest analysis test

Defending Claims of Foreign Litigants v Ashby v 219

B. Decided Issue by Issue: Depeage

Defending Claims of Foreign Litigants v Ashby v 221

D. Determining and Proving Foreign Law

222 v Asbestos Medicine v November 2010

Court determined Russian law on summary judgment motion by evaluating declarations

Court accepted defendant Russian boxers self-submitted but undisputed characterization

Martindale-Hubbell International Law Digest deemed sufficient to demonstrate Japanese

III. Third Line of Defense: Borrowing Statutes

226 v Asbestos Medicine v November 2010

1. Application is mechanical and mandatory

Defending Claims of Foreign Litigants v Ashby v 227

IV. Cross-Border Discovery of Foreign Nonparties

228 v Asbestos Medicine v November 2010

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

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

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

232 v Asbestos Medicine v November 2010

Defending Claims of Foreign Litigants v Ashby v 233

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