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A Tale of Discovery under the Hague Convention

By Charles S. Fax, Litigation News Associate Editor

 

It seemed like a good idea at the time. International headlines reported the arrest in Budapest of a notorious World War II Hungarian war criminal, Laszlo Csatary. In 1948, he was convicted in absentia for complicity in the extermination of more than 15,000 Jews living in Kosice (now part of Slovakia), but he escaped to Montreal and was never punished. In 1997, after being discovered in Montreal, he flew to Budapest under an assumed name and had been living there quietly since then. As it happened, Csatary was a key witness to pivotal events in a case that I and others had brought on behalf of survivors of the Hungarian Holocaust against Hungary and its national railway, “MAV.” MAV transported more than 400,000 Hungarian Jews to their slaughter at Auschwitz toward the end of the war. Kosice was one of the key railheads on the train tracks to the death camp. Csatary was alleged to have been in charge of the embarkations there.


When I read of his arrest and detention, I immediately thought of Rule 28(b)(1)(A)–(B) of the Federal Rules of Civil Procedure. Those provisions authorize the taking of a deposition in a foreign country under the Hague Convention. I asked myself, “Why not?” Little did I realize the expense, complexity, and frustration attendant to the endeavor.


We had no scheduling order in the case, so I filed a motion for leave to take an expedited deposition under Rule 30(a)(2)(A)(iii). Despite the defendants’ objections, the motion was granted. Step one was complete. I then embarked on step two: drafting the letter rogatory—a request for discovery from our court to the Hungarian justice system—in a form acceptable under the rules of court and the Hague Convention. After several tries on my part, the court approved the form and we progressed to step three: transmitting the letter rogatory to the Hungarian authorities. Under the Hague Convention, the host government may accept or reject the request and impose terms on its execution pursuant to local law and practice. My colleagues and I doubted that Hungary would authorize Csatary’s deposition, but we were wrong. Hungary acceded to the request with conditions, including the requirement that we submit all of our deposition questions in advance. (We would, however, be allowed to ask spontaneous follow-up questions.) We complied and then waited. Several months later, I was notified of the date, time, and location of the proceeding in Hungary.


As I embarked to Budapest to confront Csatary on behalf of my clients, I felt their weight on my shoulders. Could I stand in their stead to contend with Csatary? Of course we recognized the possibility that he would invoke his privilege not to testify, but in a civil case, even that might provide useful admissions. In the event, Csatary (ostensibly under house arrest and subject to the control of the police) did not appear for his deposition, claiming that he had just been released from the hospital and was too ill. His lawyer appeared and submitted Csatary’s written statement, consisting mostly of denials and a caveat that he would not testify further even if he appeared in person. The presiding judge considered reconvening the deposition at Csatary’s home, where presumably he could testify from bed, but Csatary’s doctor rejected that idea. The judge agreed to try to obtain copies of Csatary’s criminal interrogation upon receipt of a supplemental letter rogatory, but otherwise, we were at an end.


Was the expense worth it? It was always a long shot, considering the hoops we had to jump through just to get to the Budapest courtroom door with no assurance that the witness would testify. We did obtain a written statement with a few admissions, and we may gain access to Csatary’s criminal interrogation. But I never was able to examine Csatary face-to-face, the holy grail of every trial lawyer. Would I use the Hague Convention again? I don’t know.


This past June, Hungary formally indicted Csatary for war crimes, and his trial was quickly commenced. It was suspended after three weeks, however, on the grounds of “double jeopardy” (since he was convicted in 1948). The Hungarian prosecutors appealed that decision, but on August 10, Csatary died at home, a free man to the last.


Keywords: Hague Convention, discovery, Rule 28, Rule 30, letter rogatory


 

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