Failure to invoke foreign law

1. Failure to invoke foreign law Possible consequences of failure – • Court applies forum law • Court ascertains foreign law • Court dismisses – forum non conveniens When and how – • Must foreign law be raised? • May parties seek discovery about foreign law?

2. Failure to invoke foreign law Walton is injured in a car crash in Saudi Arabia by Aramco, a US company. He sues in New York federal court. His lawyer, who passed the New York bar with flying colors, assumes that New York negligence law. Questions: • What law applies – why? • Does Walton have to prove Saudi law? • What does Rule 44.1 say? California § 311?

3. Failure to invoke foreign law

4. Failure to invoke foreign law Rule 44.1: Determination of foreign law A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material … Questions: • What does this mean? • What happens if parties fail to invoke foreign law?

5. Failure to invoke foreign law Rule 44.1: Determination of foreign law Questions: • Does this mean that court cannot look (need not look) at foreign law unless raised by a party? • Does this mean domestic law applies if foreign law is not raised? Can a party waive “law”? • Why doesn’t the rule specify the consequences of failing to invoke foreign law?

6. Failure to invoke foreign law California § 311 If foreign law can’t be determined either – (a) Apply California law (if constitutional) (b) Dismiss the action without prejudice Questions: • Who must raise foreign law? If not, is it waived or forfeited? • If jury is instructed on domestic law, too late? • When is applying domestic law unconstitutional?

7. Ruff v. St Paul Mercury Insu Co (2d Cir. 1968) Use IRAC for case from Liberia: Facts? Issue? Defendant’s argument? Plaintiff’s argument? Rule? Analysis? Conclusion? By the way, have you heard of Charles Ruff? Failure to invoke foreign law

8. The late White House counsel Charles Ruff became an instant celebrity through the Clinton impeachment hearings. He was paralyzed by a rare disease contracted while teaching law in Liberia. Failure to invoke foreign law

9. Failure to invoke foreign law Ruff v. St Paul Mercury Insu Co (2d Cir. 1968) Ruff lost on the issue of “endemic disease” coverage under the policy. On appeal he claimed that Liberian workers’ comp law provided a recovery. The appeals court said must give “reasonable written notice” in district court. Rule 44.1. Too little, too late. Question: • Can’t the appeals court take judicial notice on its own? • What should Ruff (or his lawyer) have done?

10. Failure to invoke foreign law Ruff v. St Paul Mercury Insu Co (2d Cir. 1968) Assume Ruff had also sued his employer, seeking recovery under Liberian workers’ comp law. Question: • What notice must Ruff provide? Rule 44.1. • Can he claim “work product” when asked to produce his research on the subject? • If he plans to call an expert, can the expert’s opinion on Liberan WC be discovered?

11. Failure to invoke foreign law Rule 26(b)(2)Disclosure of Expert Testimony. (A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence. Rule 702 Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

12. Failure to invoke foreign law Rule 26(b)(2) Disclosure of Expert Testimony. (B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. (continued)

13. Failure to invoke foreign law Rule 26(b)(2) Disclosure of Expert Testimony. (B) (continued) The report shall contain a complete statement of all opinions to be expressed and the basis; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert … within the preceding four years.

14. Failure to invoke foreign law Rule 26(b)(4) Trial Preparation: Experts. (A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial.  If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.

15. Failure to invoke foreign law Rule 26(b)(4) Trial Preparation: Experts. (B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

16. Failure to invoke foreign law Turkey v. OKS Partners (D Mass 1993) Use IRAC for case by Turkey: • Facts? • Issue? • Defendant’s argument? • Plaintiff’s argument? • Rule? • Analysis? • Conclusion?

17. The Elmali Hoard Elmali is the largest Ottoman town of the southwest area of Turkey, located high on a mountain plain.  It is famous for its well-preserved wooden houses. Failure to invoke foreign law

18. Failure to invoke foreign law Law 2863: on the Protection of Cultural and Natural Properties (July 21, 1983) • Plaintiff: affidavits of Turkish law experts • Defendant: answers to expert interrogatories • Identify experts, CV, publications • Provisions of Turkish law (and LH) • “true ownership only from government decision to acquire and actually pay for antiquities”

19. Failure to invoke foreign law • Defendant: please explain LH of 1983 law • Document request • Interrogatories • Deposition notice Questions: • Is LH relevant to defendant’s case? • Why does defendant want more than published LH?

20. Failure to invoke foreign law Possible consequences of failure – • Court applies forum law - default rule • Court may (perhaps) be able to invoke sua sponte When and how – • Must foreign law be raised? Rule 44.1 – • At trial court, by written notice • Not on appeal, since failure to invoke waives • May parties seek discovery about foreign law? • Experts discoverable, if will testify • Foreign law sources must be relevant