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73 Notre Dame L. Rev. 1017 (1997-1998)
Discovery and the Role of the Judge in Civil Law Jurisdictions

handle is hein.journals/tndl73 and id is 1029 raw text is: DISCOVERY AND THE ROLE OF THE JUDGE IN CIVIL LAW JURISDICTIONS Geoffrey C. Hazard, Jr.* Wide-ranging pretrial discovery is an integral part of contempo- rary American civil litigation, particularly in cases involving substantial stakes. Pretrial discovery, strictly defined, is entirely unavailable in civil law jurisdictions. Procedures fimctionally similar to pretrial dis- covery are available in civil law systems, and American parties to trans- national civil litigation sometimes attempt to use those civil law procedures.' However, the experience is often frustrating for Ameri- can lawyers because the civil law judges are not readily receptive to these endeavors. Indeed, the American endeavors in discovery from foreign sources often are deeply disturbing to the bench, bar, and governmental authorities abroad, and engender hostility to these en- deavors.2 This attitude in other countries can be interpreted as anti- foreign sentiment, and specifically antipathy to American-style civil lit- igation. No doubt attitudes of that sort often exist among civil law judges. However, there are deeper reasons for the reluctance of civil law judges to assist in ventures in which American parties seek pretrial discovery of evidence abroad for use in American legal proceedings. This article undertakes briefly to explore these reasons. I. AmvmcAN AND CrviL lAw CONCEPTS OF JUDICIA RoLE COMPARED The salient procedures for pretrial discovery of evidence under American procedure are those for deposition of witnesses and discov- ery of documents. The Federal Rules of Civil Procedure are the basic model. Under Federal Rules 26 and 30, pretrial discovery depositions may be taken of parties, of party-affiliated persons, such as employees of corporate parties, and of non-party (third party) witnesses. They * Trustee Professor of Law, University of Pennsylvania; Director, The American Law Institute. 1 See RESrATEMENT OF THE FOREIGN RELATIONS LAw OF ThE UNED STATES § 442, REPORTERS' NO=s, note 1, and sources cited there. 2 See id. at notes 2-5.

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