Case Update (20 Oct 2022): U.S. v. Buff; Court may require deposition in France outside of the Evidence Convention

This case is not a family law case, but has key legal issues relevant to the international family law practitioner. The Plaintiff, the United States, accused Ms. Buff of failing to report financial interest in certain foreign bank accounts from 2006-2008. It seeks unpaid civil penalties in the amount of $64,292.06 (plus). Ms. Buff filed a motion to dismiss for failure to effectuate service, indicating she lived outside of the United States. Her motion to dismiss was denied. On October 8, 2021, the parties filed their joint Rule 26(f) discovery plan report, where the parties noted that Ms. Buff was not willing to provide discovery voluntarily, and so Plaintiff intended to seek discovery under Ch. 1 of the Hague Evidence Convention. The Mag. Judge set a discovery deadline of one year later to account for discovery overseas (yes - it can take that long). During the litigation, Ms. Buff moved from France to Belgium. On March 16, 2022, the U.S. filed a letter motion indicating that it sought to depose Ms. Buff, but that her relocation to Belgium created a problem, as Belgium is not a signatory to the Hague Evidence Convention. The U.S. sought to compel Ms. Buff to participate in her deposition directly through the power of the court. Ms. Buff argued that discovery was required to be taken under the Hague Evidence Convention. The Court held that while the HEC could not be used in Belgium, the U.S. still had to go through formal discovery channels if Ms. Buff refused to sit for a deposition voluntarily. On May 6, 2022, Ms. Buff relocated back to France. Shortly thereafter, the U.S. sought to compel Ms. Buff to sit for a deposition without resorting to mechanisms in the HEC. The Court concluded that the joint discovery plan was an agreement between the parties to proceed with discovery via the HEC. By now, a month and a half had passed since Ms. Buff relocated back to France, and the U.S. had not yet initiated any action to depose her under the HEC.

On August 22, 2022, the U.S. indicated that it followed the procedures of the HEC, but that Ms. Buff was refusing to give her consent, as is mandated by the HEC (in France). Note, France has taken certain reservations to the HEC, including that the person who is to give evidence must receive notice that states, among other things, that "the parties to any action consent to it or, if they do not, their reasons for this." Involuntary discovery requires a lengthy process in France, by making requests first to the Ministry of Justice and then to a local court, if the Ministry allows the request. The court noted that it could take up to 9 months just for a deposition to be organized, and the Ministry might actually reject the request because it might be considered "administrative" and not within the jurisdiction of the "civil or commercial" matters in the HEC.

The Court analyzed the law. It clarified that the language in the HEC is permissive, not mandatory, and courts have, in the past, ordered litigants before it to provide evidence that is found overseas. U.S. courts have also often ordered discovery in France, regardless of France's blocking statute limiting foreign discovery within its jurisdiction. While there may be a potential for criminal prosecution in France for violating the blocking statute, the U.S. courts have found that France doesn't subject defendants to a realistic risk of prosecution. "The Second Circuit has identified four factors that are used to determine, when there is a conflict of laws in a discovery matter, which legal regime should be followed: '(1) the competing interests of the nations whose laws are in conflict; (2) the hardship of compliance on the party or witness from whom discovery is sought; (3) the importance to the litigation of the information and documents requested; and (4) the good faith of the party resisting discovery.'"

In this case, the court concluded that tax issues are not considered subject to the HEC by French authorities, based on its review of the Country Profile on file with the Hague Conference on Private International Law. The U.S. interest in enforcing its tax laws on a U.S. national located in France is higher than France's interests. There is no hardship for Ms. Buff who could take the deposition from home, could travel to a nearby country with no blocking statute to take the deposition, or could just consent to the deposition under the HEC. The court also found that Ms. Buff was delaying discovery because "I will not make the government's life easier, no." If this was not persuasive enough for the Court to order Ms. Buff to sit for her deposition, it found that she consented to proceed under the HEC.