Chancery Addresses French Law’s Restrictions on Discovery
In Re Activision Blizzard, Inc. Stockholder Litigation, Cons. C.A. No. 8885-VCL (Del. Ch. Feb. 21, 2014).
Why this case matters: This Delaware Court of Chancery decision addresses the restrictions imposed by French law and the Hague Evidence Convention on efforts to take depositions and compel production of documents of French residents–in a pending matter in Delaware–some of whom are also directors of Delaware companies involved in the case. This decision would also be useful in the increasing number of instances where discovery is needed from parties or witnesses who attempt to use foreign law to block replies to discovery requests in a pending Delaware case.
This opinion relied in part on decisions of the U.S. Supreme Court which held that American courts have the power to require a party to respond to discovery in accordance with the rules of civil procedure, though “the court must make a discretionary determination about whether to do so on the facts of the case.” See also Restatement (Third) of Foreign Relations Law, Sections 441 and 442 (1987).
Importantly, although Vivendi is a French company, in the restructuring agreements at issue in this case, it agreed “… to the exclusive jurisdiction of Delaware courts and agreed that Delaware law would govern any disputes.” Slip op. at 31.
Bottom line: The Court required the residents of France who were directors of Delaware entities to “make themselves available for deposition in the United States.” See 10 Del. C. Section 362. Slip op. at 37. For other witnesses located in France, the court required that they make a good faith effort to comply with French law but if that proved unsuccessful for purposes of meeting imminent deadlines in the Chancery case, the Court would revisit the issue of whether to compel them to come to the U.S. to be deposed. See generally footnote 8.