FEDERAL:

28 U.S.C. § 1782 “permits expansive discovery, which may not otherwise be available to parties in the foreign jurisdiction, and can be used to obtain testimony and documents from third parties in the U.S.”^[1]

GUAM:

In accordance with Article 40, the United States declares that the Convention shall extend to Guam, Puerto Rico and the Virgin Islands.² There is no specific Guam state law that authorizes discovery in aid of foreign litigation, however, it is possible to obtain evidence under the Hague Evidence Convention.³ Under 6 GCA § 7603, a witness may be compelled to testify in a deposition in Guam “[w]henever any mandate, writ, or commission is issued out of any court of record in any other territory, state, district, or foreign jurisdiction, or whenever upon notice or agreement, it is required to take the testimony of a witness or witnesses in Guam...by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in Guam⁴.”  6 GCA § 7604 permits, under limited circumstances, the taking of depositions in Guam for foreign use even without a commission issued by a foreign court.

[1] Coren, Jeffery, Getting Evidence in the U.S. for Foreign Proceedings, Buffalo L. J.  (6/7/2017), https://phillipslytle.com/publications/article/phillips-lytle-attorney-jeffrey-d-coren-authors-article-buffalo-law-journal/.

[2] Senate Executive Report 111-2 (“for the United States, the Convention would apply only to the U.S. jurisdictions participating in Title IV-D of the Social Security Act: the fifty U.S. states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands”), https://www.govinfo.gov/content/pkg/CRPT-111erpt2/html/CRPT-111erpt2.htm.

[3] Massachusetts has a clear statute saying “A court of this commonwealth may order a person who is domiciled or is found within this commonwealth to give his testimony or statement or to produce documents or other things for use in a proceeding in a tribunal outside this commonwealth.” Mass. Gen. Laws Ann. ch. 223A, § 11 (West). There is no comparable language in the Guam legislation. However, under Rule 28. Persons Before Whom Depositions may be Taken., Rules of Civil Procedure, Rule 28(b), “[d]epositions may be taken in a foreign country (1) pursuant to any applicable treaty or convention,…”

[4] 6 GCA §7603 originates from Cal. Civ. Proc. Code § 2036a (repealed 1957). The statute does not specify whether “foreign jurisdiction” refers to foreign countries or U.S. jurisdictions other than Guam. The Supreme Court of California has interpreted the provision to include foreign countries. Christ v. Superior Ct. in & for City & Cty. of San Francisco, 211 Cal. 593, 601, 296 P. 612, 616 (Cal. 1931) (issuing a commission for the taking of testimony of two California witnesses upon letters rogatory issued out of a court of record of Guatemala.) Absent a mandate, writ, or commission of a foreign court, a party cannot obtain the testimony of a witness residing in Guam and use it in a foreign action, except as permitted under 6 GCA § 7604. 6 GCA § 7601-2. See also People of Eauripik et al. v. Osprey Underwriting Agency et al., SP0121-14, at 3-4 (Super. Ct. Guam Jan. 11, 2015) (quashing prior grant of a subpoena directed to Guam residents for use in a Federated States of Micronesia action partly because the request from the FSM Court was a “vague letter of request, or potentially a commission”). Also, note all of the California provisions from which 6 GCA § 7601 et seq. derives have since been repealed.

FEDERAL:

In Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 541, the Supreme Court held that the “idea of international comity does not require first use the Hague Evidence Convention's procedures when conducting discovery against a foreign litigant. A “general rule has evolved that where the district court has personal jurisdiction, discovery will proceed under the Federal Rules.”¹ “The confusion and inherent difficulty of the Aerospatiale comity analysis have produced an almost "uniform" refusal of district courts to order discovery pursuant to the Hague Evidence Convention.”² Decisions in state courts, an issue not addressed in this article, have been more likely to mandate discovery under the Hague Evidence Convention.³

GUAM:

In accordance with Article 40, the United States declares that the Convention shall extend to Guam, Puerto Rico and the Virgin Islands.⁴ 71 Am. Jur. Trials 1 (Originally published in 1999)

[1] 71 Am. Jur. Trials 1 (Originally published in 1999)

[2] 71 Am. Jur. Trials 1 (Originally published in 1999)

[3] 71 Am. Jur. Trials 1 (Originally published in 1999)

[4] Senate Executive Report 111-2(“for the United States, the Convention would apply only to the U.S. jurisdictions participating in Title IV-D of the Social Security Act: the fifty U.S. states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands”), https://www.govinfo.gov/content/pkg/CRPT-111erpt2/html/CRPT-111erpt2.htm.

FEDERAL:

The appropriate forum to make gathering evidence requests is “the district court of the district in which a person resides or is found… pursuant to a letter…any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. ...”¹

GUAM:

State courts “(1) pursuant to any applicable treaty or convention, or (2) pursuant to a letter of request (whether or not captioned a letter rogatory), or (3) on notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by a law of Guam, or (4) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony, or (5) pursuant to a letter rogatory.”²

[1] 28 U.S.C.A. § 1782(a) (West)

[2] Rule 28. Persons Before Whom Depositions may be Taken., Rules of Civil Procedure, Rule 28; See generally, Rule 26. General Provisions Governing Discovery; Duty of Disclosure., Rules of Civil Procedure, Rule 26; Article IV, Relevancy and Its Limits, 6 G.C.A. §§ 401-404, https://www.westlaw.com/Browse/Home/GuamNorthernMarianaIslands/GuamStatutesCourtRules?guid=I08E9C5E133594D558FBDF1D120473794&transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0.

FEDERAL:

The scope of discovery includes written discovery, document production and depositions and “a wide-ranging…information that is reasonably calculated to lead to the discovery of admissible evidence.”¹

GUAM:

(Upon proper letter of request or other methods authorized under the Hague Evidence Convention, the scope of discovery should be identical to that of the federal rules above.)² Only written depositions are permitted for foreign use under Guam law³.

[1] Hawkins, Kenneth B., Discovery and Rule 34: What's So Wrong About Surprise?, American Bar Ass’n J.. 39 (12): 1075–1079 (December 1953) JSTOR 25718642; see also 28 U.S.C.A. § 1782(a) (West). “To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.”

[2] Rule 28. Persons Before Whom Depositions may be Taken., Rules of Civil Procedure, Rule 28.

[3] "Upon the appearance of the witness, the judge must cause his testimony to be taken in writing, and must certify and transmit the same via the Governor of Guam, or directly if the law of the place wherein the action or proceeding is pending permits, to the court or judge before whom the action or proceeding is pending, in such manner as the law of that jurisdiction requires." 6 GCA § 7605.

“All courts agree that the proponent of an attorney-client privilege claim must carry the burden of proof (although courts disagree about whether that burden includes establishing the lack of a waiver).”¹

[1] McGuire Woods, Court Explains Elaborate and Shifting Burdens of Proof Involving a Work Product Claim, https://www.mcguirewoods.com/Client-Resources/Privilege-Ethics/Privilege-Points/2005/6/Court-Explains-Elaborate-and-Shifting-Burdens-of-Proof-Involving-a-Work-Product-Claim?print=true&p=1#:~:text=All%20courts%20agree%20that%20the,the%20lack%20of%20a%20waiver).

FEDERAL: Yes.¹;

GUAM:?² Only if a commission is not issued by the foreign court³.

[1] 56 A.L.R. Fed. 2d 307 (Originally published in 2011)(“ “Before granting the discovery request, a court “must consider the following nonexclusive factors…: … the receptivity of the foreign government or agency abroad to U.S. federal court judicial assistance; (3) whether the request conceals an attempt to circumvent foreign proof-gathering restrictions or other important policies of the foreign country; ….””)

[2] There is no comparable language in the Guam code.

[3] 6 GCA § 7604 (“...That, according to the law of the place where the action or special proceeding is pending, the deposition of a witness taken under such circumstances, and before such judge, will be received in the action or proceeding...”).

FEDERAL: Yes.¹;

GUAM: Yes.²

[1] Rule 30(b)(4) of the Federal Rules of Civil Procedure: "By Remote Means. The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions."

[2] Rule 30. Depositions Upon Oral Examination., Rules of Civil Procedure, Rule 30 “(b)(7) The parties may stipulate in writing or the court may upon motion order that a deposition is taken by telephone or other remote electronic means. For the purposes of this rule and Rules 28(a), 37(a)(1), and 37(b)(1), a deposition taken by such means is taken at the place where the deponent is to answer questions.”

No.¹

[1] As I was researching “blocking statutes,” I have seen extensive discussions regarding the conflict between the U.S. and foreign countries’ blocking statutes against the U.S. discovery procedure and that the U.S. often ignore such blocking statutes. See generally, e.g., Rosdeitcher, Sidney S., Foreign Blocking Statutes and U.S. Discovery: A Conflict of National Policies, 16 N.Y.U. J. Int'l L. & Pol. 1061 (1984). However, I have not found results leading to U.S. jurisdictions adopting blocking statutes. As a result, I assume that the U.S. did not adopt one.

FEDERAL: Yes.¹;

GUAM:  Yes.²

[1] 28 U.S.C.A. § 1782 (West) “(b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him.”

[2] There is no restriction on voluntarily providing evidence unless it is privileged or subject to other limitations prohibited by the Guam rules of evidence. See generally, Rule 26. General Provisions Governing Discovery; Duty of Disclosure., Rules of Civil Procedure, Rule 26; Article IV, Relevancy and Its Limits, 6 G.C.A. §§ 401-404, https://www.westlaw.com/Browse/Home/GuamNorthernMarianaIslands/GuamStatutesCourtRules?guid=I08E9C5E133594D558FBDF1D120473794&transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0.

FEDERAL: Yes, the answer could differ because there is a circuit split regarding whether the expansion of discovery in aid of foreign litigation prescribed in 28 U.S.C §1782 applies to private arbitration.¹

GUAM: Guam courts may assist in taking evidence pursuant to “summons to produce books or tangible items therein designated, to produce documents or to permit inspection of books, documents or tangible items at a time and place therein specified may be joined with a command to appear as witness or may be issued separately.”²

[1] Sara McBrearty, Obtaining Discovery in International Arbitration, Foreign Proceedings and International Arbitral Tribunals, 63 The Advoc. (Texas) 46, 48 (2013) (“Because [Intel Corp. v. Advanced Micro Devices, 542 U.S. 241 (2004)] did not directly decide the applicability of Section 1782 to arbitral tribunals [, though in a dicta, the Supreme Court in Intel favored that “tribunal” applies to “arbitral tribunals”], district courts have continued to disagree. The Fifth Circuit has held, …, that the term “tribunal” does not include private arbitration tribunals. [The Second Circuit will likely hold similar]. The Eleventh Circuit recently reached the opposite conclusion, holding that Section 1782 applied to a private arbitration tribunal in Ecuador.”)

[2] 7 G.C.A. §§ 42A510-42A511, “[t]he arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of Guam assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.”