In Re Cote D’Azur Estate, C.A. No. 2017-0290-JTL (Del. Ch. Dec. 12, 2022)

The Hague Evidence Convention provides an alternative method from the Federal Rules of Civil Procedure to compelling production from opposing parties across international lines. In this decision, the Court of Chancery considered a request for production under the Convention from a plaintiff-heir, seeking discovery on her late father’s former legal counsel regarding issues surrounding the family estate, established as a Delaware LLC, to control the family villa in France. Questions arose regarding the propriety of the legal advice provided to the father by counsel, and plaintiff-heir sought to compel production of discovery, while defendant-counsel refused to cooperate.

In deciding that discovery was permissible, the Court examined the discovery requests against several generally applicable rules governing discoverability and privilege under Delaware law. The Court also balanced five factors established by the United States Supreme Court decision, Societe Nationale, 482 U.S. at 546, for issuing letters including: 1) the importance of the information requested to the litigation; 2) the degree of specificity of the request; 3) whether the information originated in the U.S.; 4) whether alternative means of obtaining the information are available; and 5) whether important interests of either the United States or the foreign state where the discovery material is located are implicated.