There has always been tension between European countries and the United States on the topic of evidence gathering. Much of that tension stems from the inherent differences between common and civil policies and methods. Until the Hague Convention, the process for obtaining evidence abroad was cumbersome and unreliable. The Hague Convention sought to change that by providing signatory countries more effective methods of cooperating with each other in international litigation. However, the Hague Convention has not been able to achieve its purpose, at least not in the United States. U.S. courts have interpreted the Hague Convention as optional, meaning it is rarely used. In addition, litigants in the E.U. often face stiff penalties for producing data in U.S. discovery. Article 23 also makes it difficult for common law countries to accept that the Hague Convention protects their discovery goals. The combination of all the different laws and underlying policies is both confusing and complex. Fixing the problem is not hopeless, though. The solution can be addressed by making the Hague Convention mandatory, rewriting Article 23, and releasing litigants who use the Hague Convention from liability. By addressing the problem at its source, the text of the Hague Convention, many of the issues can be dealt with and the Hague Convention can achieve its originally intended purpose.
Reinforcing the Hague Convention on Taking Evidence Abroad After Blocking Statutes, Data Privacy Directives, and Aerospatiale,
San Diego Int'l L.J.
Available at: https://digital.sandiego.edu/ilj/vol12/iss1/9