United States District Court, N.D. California
SUN GROUP U.S.A. HARMONY CITY, INC., Plaintiff,
CRRC CORPORATION LTD, Defendant.
ORDER REGARDING APPLICATION OF HAGUE CONVENTION
REGARDING DOCKET NOS. 132, 135, 144
KIM United States Magistrate Judge
CRRC Corporation Ltd (“Defendant”) argues that
Plaintiff Sun Group U.S. A. Harmony City, Inc.
(“Plaintiff”) must submit its request for
documents located in China in accordance with the procedures
proscribed by the Hague Convention on the Taking of Evidence
Abroad in Civil or Commercial Matters (“Hague
Convention”). Plaintiff argues that Defendant must
provide documents pursuant to the Federal Rules of Civil
Procedure and that the Hague Convention does not apply
Court may regulate the conduct of discovery and require the
use of the Hague Convention procedures. See St. Jude Med.
S.C., Inc. v. Janssen-Counotte, 104 F.Supp.3d 1150, 1160
(D. Or. 2015) (citing Societe Nationale Industrielle
Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa,
482 U.S. 522, 546 (1987)); see also Autodesk, Inc. v.
ZWCAD Software Co., 2015 WL 1928184, at *1 (N.D. Cal.
Mar. 27, 2015) (“When a conflict exists between the
discovery authorized under the Federal Rules of Civil
Procedure and sovereign interests implicated by such
discovery, a court may direct parties to conduct discovery
under the Hague Convention. . . .). In determining whether to
require a party to follow the Hague Convention protocol to
obtain discovery requires “scrutiny in each case of the
particular facts, sovereign interests, and likelihood that
resort to those procedures will prove effective.”
Aerospatiale, 482 U.S. at 544.
parties agree that the determination of whether to require
the application of the Hague Convention procedures involves a
two-step inquiry. First, Defendant must prove that Chinese
law bars it from producing the discovery that Plaintiff
seeks. EFG Bank AG v. AXA Equitable Life Ins. Co.,
2018 WL 1918627, at *1 (S.D.N.Y. Apr. 20, 2018). Second,
Defendant must demonstrate that the particular facts of this
case, including the sovereign interests at stake, warrant the
requiring the application of the Hague Convention.
Aérospatiale, 482 U.S. at 544.
Whether Chinese Law Prohibits Defendant from Providing
Documents Located in the People's
Republic of China.
argues that Article 277 of the Chinese Civil Procedure Law
bars it from collecting and producing documents located in
the People's Republic of China (“PRC” or
“China”) unless it complies with the procedures
under the Hague Convention.
277 provides the following:
Request for and to provide judicial assistance shall be made
through channels prescribed by international treaties
concluded or acceded to by the People's Republic of
China; or in the absence of such a treaty, shall be made
through diplomatic channels.
A foreign embassy or consulate to the People's Republic
of China may serve process on and investigate and collect
evidence from its citizens but shall not violate the laws of
the People's Republic of China and shall not take
Except for the circumstances in the preceding paragraph, no
foreign authority or individual shall, without permission
from the competent authorities of the People's Republic
of China, serve process or conduct investigation and
collection of evidence within the territory of the
People's Republic of China.
(Dkt. 132-12 (Declaration of Xiaoyi Chen), ¶ 5.)
Defendant's Legal Expert, Jinhua Wei, is a lawyer who has
practiced law in the PRC since 2004, and he opines that
parties requesting evidence for civil litigation in the
United States must proceed through the Hague Convention
procedures for documents located in the PRC and no person,
organization or institution may provide evidence at his, her
or its own volition for use in civil proceedings abroad. (Dkt
132-13 (Declaration of Jinhua Wei), ¶¶ 1, 8(b).
8(c).) Wei explains that Article 277 prohibits foreign
entities or individuals from serving documents, investigating
and/or conducting discovery in the PRC. (Id., ¶
Defendant states that because the Chinese government has a
controlling ownership interest in Defendant, Defendant does
not have the discretion to violate Chinese law. (Dkt. 132-12,
wrote to the Chinese Ministry of Justice and asked the
Since you are the central organ designated by China under the
Hague Evidence Convention, CRRC would like to learn from your
office that whether [sic] CRRC can directly produce
the above-mentioned CRRC's documents located in the
territories of China to the U.S. Court and [Plaintiff] Sun
Group without abiding by the stipulated path(s) in the Hague
(Dkt. 134-2 (Reply Declaration of Teresa H. Michaud, Ex. A).)
In response, the International Legal Cooperation Center of
the People's Republic of China Ministry of Justice stated
in a letter dated August 16, 2019:
As provided by the Civil Procedure Law of the People's
Republic of China, any foreign judicial department(s) under
international treaties to collect evidence within Chinese
territories shall be conducted through channels ...