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Moake v. Source International Corp.

Decided: April 7, 1993.

BINSON MOAKE AND MAUREEN MOAKE, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
SOURCE INTERNATIONAL CORPORATION, DEFENDANT, AND ZEITLER SITZMOEBEL GMBH, A GERMAN CORPORATION, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Michels, Bilder and Wallace. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

We granted defendant Zeitler Sitzmoebel GmbH (Zeitler), a German corporation, leave to appeal from an order of the Law Division that compelled it to answer interrogatories propounded by plaintiffs Binson Moake and Maureen Moake, his wife, in this personal injury product liability action.

Plaintiff Binson Moake (Moake), a postal worker, was injured when the chair that he was sitting on collapsed. Moake instituted this action against defendant Source International Corporation (Source) as the manufacturer of the chair, seeking to recover damages for the personal injuries he sustained in the

accident. His wife sued per quod. In answers to interrogatories, Source disclaimed liability for the manufacture of the chair and named Zeitler as the responsible party for any claimed manufacturing or design defects. Plaintiffs thereupon amended the complaint to include Zeitler as a defendant. Plaintiffs' counsel inquired of Zeitler whether it desired to be served through the formality of the Hague Convention. Zeitler apparently responded in the affirmative and plaintiffs served Zeitler through the Hague Convention. Thereafter, Zeitler served plaintiffs with requests for documents and interrogatories pursuant to our Rules of Court. Plaintiffs answered the interrogatories and served Zeitler with interrogatories. Zeitler objected, claiming that the interrogatories must be served in accordance with the Hague Convention.

As a result of Zeitler's refusal to answer interrogatories, plaintiffs moved to compel Zeitler to answer the interrogatories. Zeitler filed a cross-motion for a protective order, requiring discovery to proceed in accordance with the Hague Convention. Following oral argument, the trial court held that discovery need not proceed under the Hague Convention, concluding, in part, that "international comity will not be offended nor the dictates of our law by requiring the defendant German national to answer interrogatories as presently propounded." We granted Zeitler leave to appeal.

Zeitler contends essentially that plaintiffs should be required to follow the procedures set forth in the Hague Convention in seeking discovery. We disagree. We are satisfied that the trial court properly compelled Zeitler to answer interrogatories in accordance with our Rules of Court and that there was no need, in the circumstances here present, to require plaintiffs to proceed in accordance with the Hague Convention. Moreover, contrary to Zeitler's claim, this matter is no longer controlled by Vincent v. Ateliers de la Motobecane, S.A., 193 N.J. Super. 716, 723, 475 A.2d 686 (App.Div.1984). Rather, this matter is controlled by the United States Supreme Court's decision in Societe Nationale Industrielle Aerospatiale v. United States

District Court, 482 U.S. 522, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987). The decision of the trial court is consistent with the principles set forth by the United States Supreme Court and we, therefore, affirm.

In Societe Nationale Industrielle Aerospatiale v. United States District Court, supra, 482 U.S. at 538, 107 S. Ct. at 2553, 96 L. Ed. 2d at 480, the Supreme Court held that "the text of the [Hague] Convention, as well as the history of its proposal and ratification by the United States, unambiguously supports the Conclusion that it was intended to establish optional procedures that would facilitate the taking of evidence abroad." The Supreme Court based its decision on the fact that Articles 1, 15, 16 and 17 of the Hague Convention all employed the permissive term "may" rather than mandatory language. Id. at 535, 107 S. Ct. at 2551, 96 L. Ed. 2d at 478. Furthermore, the Supreme Court noted that Article 23 of the Hague Convention allows signatory states to opt out of the provision allowing pretrial discovery of documents by Letters of Request and Article 27 allows signatory states to use more liberal methods of rendering evidence than authorized in the Hague Convention. Id. at 536-38, 107 S. Ct. at 2551-53, 96 L. Ed. 2d at 479-80. Thus, the text of the Hague Convention expressly allows signatory states to deviate from the procedures outlined in its provisions. See id. at 538, 107 S. Ct. at 2553, 96 L. Ed. 2d at 480.

Additionally, the Supreme Court explained that interpreting the treaty as the exclusive governing law for obtaining discovery abroad would undermine the fair administration of Justice in American courts:

The opposite Conclusion of exclusivity would create three unacceptable asymmetries. First, within any lawsuit between a national of the United States and a national of another contracting party, the foreign party could obtain discovery under the Federal Rules of Civil Procedure, while the domestic party would be required to resort first to the procedures of the Hague Convention. This imbalance would run counter to the fundamental maxim of discovery that "[m]utual knowledge of all the relevant facts gathered by both parties is ...


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