On appeal from Superior Court, Law Division, Bergen County.
Antell, Joelson and McElroy. The opinion of the Court was delivered by, Joelson, J.A.D.
Plaintiff brought action for damages for injuries he sustained while a passenger on a moped. The named defendants were Douglas Rizzi who was the operator of the moped, Motobecane America Ltd., the alleged manufacturer of the moped, and James Vincent, individually, and James Vincent, Inc. (Vincent), the retailers of the moped. Upon leave granted by the trial court, Vincent filed a third party complaint against Ateliers de la Motobecane, S.A. (Motobecane), alleging that that French corporation was actually the manufacturer of the moped, and seeking indemnification in the event of an adverse judgment. Vincent claimed in its third party complaint that the primary liability would be that of Motobecane based on strict liability ". . . in the design, manufacture, distribution and sale of the aforesaid moped." Thereafter, plaintiff amended his complaint so as to join the French corporation, Motobecane, as a direct defendant.
Vincent sought discovery by way of interrogatories and depositions. Motobecane's counsel refused to supply this discovery, contending that the furnishing of the requested information would be a violation of the French criminal law. On October 11, 1982, the trial judge signed an order directing that a representative of Motobecane testify at depositions as to the entire braking system of the moped and produce all engineering documents or diagrams with regard to the braking system. The order also required Motobecane's expert witness to appear for depositions in New Jersey. Finally, the order suppressed Motobecane's defense and entered default against Motobecane because of its failure to comply with the court's previous order to answer the interrogatories. This is Motobecane's interlocutory appeal, on leave granted, from the trial court's order of October 11, 1982. We reverse.
French Law 80-538 of July 16, 1980 provides as follows:
Art. 1. -- Outside of international treaties or conventions, it is forbidden for any French citizen or resident, or any director, officer, employee, or agent of any company having its headquarters or an office in France, to communicate in
writing, orally, or in any other way, to any foreign public authority documents or information of an economic, commercial, industrial, financial or technical nature where, in the discretion of the competent administrative authority, the communication might endanger the sovereignty, security, or essential economic interests of France or the public order.
Art. 1. bis. -- Outside of international treaties or conventions, it is forbidden for any person to request, search for, or communicate, in writing, orally, or in any other way, documents or information of an economic, commercial, industrial, financial or technical nature for the purpose of using such documents or information in a foreign judicial or administrative proceeding.
Art. 2 -- The persons covered by Article 1 and 1 bis must advise without delay the competent minister as soon as they are requested to make such communications.
Art. 3 -- Without prejudice to any additional penalties prescribed by law, any violation of Articles 1 and 1 bis shall be punished by two to six months in prison, or a fine of 10,000 to 120,000 francs, or both. . . .
"It is hardly debatable that fear of criminal prosecution constitutes a weighty excuse for nonproduction, and this excuse is not weakened because the laws preventing compliance are those of a foreign sovereign." Societe Internationale v. Rogers, 357 U.S. 197, 211, 78 S. Ct. 1087, 1095, 2 L. Ed. 2d 1255, 1267 (1958). However, as emphasized in the brief submitted on behalf of Motobecane, the French law does not preclude Vincent from obtaining its discovery, but only prohibits such discovery "outside of international treaties or conventions. . . ." Thus, Motobecane contends, that "[s]ince the United States and France are both parties to the Hague Convention, Vincent could obtain access to discovery information through this channel." This contention is supported by material in Motobecane's appendix.
The third party complaint in this matter was filed on October 13, 1982. Included in Motobecane's appendix is a letter received in another matter by Motobecane's attorney in France from the French Ministry of Foreign Affairs and the French Ministry of Justice. The letter of the Ministry of Foreign Affairs dated June 25, 1981 acknowledged receipt of the attorney's letter of May 21, 1981, informing the Ministry that discovery ...