## Facts

- Purchasers of air-freight shipping services sued multiple airlines in a multidistrict antitrust action alleging global price-fixing of air-cargo surcharges.
- In a related criminal antitrust investigation, the U.S. Department of Justice obtained five boxes of Air France documents through a U.S.–France mutual legal assistance treaty request.
- Civil plaintiffs sought the same documents from Air France in U.S. discovery.
- Air France refused, citing France’s blocking statute (Law No. 80-538), which prohibits transmitting certain business information for use as evidence in foreign proceedings and provides criminal sanctions.
- The parties did not dispute that the documents were relevant and that direct production by Air France would violate the blocking statute.
- Plaintiffs moved to compel production; Air France argued plaintiffs should be required to proceed through the Hague Evidence Convention.

## Issues

1. Whether a federal court must require civil plaintiffs to use Hague Evidence Convention procedures when a foreign blocking statute would be violated by direct production.
2. Whether, after international comity balancing, the court should compel production under the Federal Rules of Civil Procedure despite the risk of foreign criminal sanctions.

## Decision

- The court granted plaintiffs’ motion to compel.
- The court ordered Air France to produce the five boxes of documents.
- The court declined to require plaintiffs to seek the documents through the Hague Evidence Convention.

## Legal Principles

- The Hague Evidence Convention is a permissive mechanism for obtaining foreign evidence and does not displace a federal court’s authority to order discovery under the Federal Rules of Civil Procedure.
- When U.S. discovery obligations conflict with foreign nondisclosure laws, courts apply an international comity analysis that considers, among other factors:
  - the importance of the requested information to the litigation;
  - the specificity of the request;
  - the availability and effectiveness of alternative means (including Hague procedures);
  - the hardship and sanction risk to the producing party;
  - the comparative strength of U.S. interests in adjudication and enforcement versus the foreign sovereign’s interests.
- Foreign blocking statutes, including France’s, are not automatically controlling; a court may compel production where U.S. interests in effective adjudication outweigh the foreign interest and treaty-based alternatives are likely to be slow, uncertain, or incomplete.
- The government’s prior use of treaty mechanisms in a criminal investigation does not limit a civil court’s discretion to order production under U.S. procedural rules.

## Conclusion

The court compelled Air France to produce specific, relevant documents despite France’s blocking statute, holding that Hague Evidence Convention procedures were not mandatory and that comity balancing favored direct production under the Federal Rules in the antitrust MDL.


In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51 (E.D.N.Y. 2010)